Month: July 2013

The Queen and the constitution

Whenever there is a high-profile royal event such as a birth or a wedding, it invariably generates a wide spectrum of reactions. Most are usually positive, but there will always be some people who feel compelled to voice their displeasure. Some of these people clearly dwell among the lunatic fringe (such as the commentator, who shall remain nameless and linkless, who wants the Royal Family imprisoned for “crimes against humanity”), while others just don’t understand the monarchy’s role in the British constitution. Many of these people like to claim that the Queen doesn’t actually do anything, as if her entire life has been spent sitting around Buckingham Palace eating bonbons and watching Coronation Street while cashing hefty checks from the taxpayer.

In reality, of course, the monarchy is an integral part of the British constitution. The Queen’s duties fall into two main categories: those she undertakes in her capacity as head of state, and those she undertakes in her capacity as head of the nation.

Her head-of-the-nation duties are probably the most visible aspect of the monarchy’s work. They include the endless parade of ribbon cuttings, hospital visits, school visits, and ship christenings. While these things have no constitutional importance, it would be wrong to dismiss them out of hand as unimportant. They are a way to highlight local achievement and support worthy causes. In a way, it’s like a non-partisan version of our president’s celebrated bully pulpit. From the British perspective, the Royal Family is uniquely well suited to this task because, unlike a politician, they don’t have political baggage. Here in Wisconsin, for example, Governor Walker is booed and heckled even when undertaking purely ceremonial duties.

Although arguably less prominent in the public’s mind, the Queen’s head-of-state duties are her raison d’être. The most visible example is probably the State Opening of Parliament, but most of her constitutional work is done behind the scenes. She summons and prorogues Parliament. She makes a dizzying array of appointments, ranging from the Prime Minister to Church of England parish priests. There’s also lots and lots and lots of reading. In addition to briefings from the British government, she also receives regular communications from the 15 other independent realms of which she is Monarch. By all accounts, the Queen takes this aspect of her job very seriously. There’s an anecdote about how, during his weekly audience with her, Winston Churchill was once caught flat-footed when the Queen wanted to discuss an obscure Foreign Office telegram that Churchill hadn’t bothered to read. When he returned to Number 10, he ordered his Private Secretary to make him read everything!

The Queen essentially does a lot of the same things that our president does, though there’s one key difference: she is supposed to act on the advice of the government of the day rather than her own personal whims. However, that convention is counterbalanced by one that gives the Queen three key rights in relation the government: the right to be consulted, the right to encourage, and the right to warn.

Besides the convention mentioned above, there are actually few formal limits on the Queen’s power. In the US, we enshrined the notion checks and balances in our written constitution. If Obama vetoes a bill, Congress can override his veto. If he nominates an unsuitable candidate for high office, the Senate can refuse its advice and consent. But there are no such limitations on the Queen’s power. If she were to refuse Royal Assent to a bill, there’s no mechanism for Parliament to override her. Similarly, Parliament has no formal say on the majority of royal appointments. In the absence of formal checks and balances, Britain has developed informal ones.

Because of the limitations on her power, many people (both in Britain and the US) assume that the Queen is little more than a figurehead without any influence over political affairs. But since her interactions with the government are totally confidential, it’s hard to measure the extent of her influence. However, Anne Twomey, a Professor of Constitutional Law at the University of Sydney Law School, has managed to unearth some tantalizing tidbits about the Queen’s activities in the political sphere.

In 1979, the government of the Australian state of New South Wales decided to introduce legislation to abolish judicial appeals to the British Privy Council and to require the Queen to appoint the state Governor on the advice of the Premier of New South Wales instead of the British Foreign Secretary. As usual, these changes were announced in the governor’s Speech from the Throne, a copy of which was duly sent to the UK.

At the federal level, the Queen reigned as ‘Queen of Australia’ and acted on the advice of her Commonwealth ministers. But the states were technically dependencies of the British Crown, and this created an anomalous situation where the Queen still acted on the advice of the British government when dealing with state matters.

The British Foreign Office had some concerns about the constitutionality of New South Wales’ proposals, but it felt that the best course of action would be for the Queen to respond with the usual formal acknowledgement and then the UK government could raise the matter orally through diplomatic channels. The Queen, however, disagreed with this approach. She wanted to warn the Governor right off the bat that the Foreign Secretary might ask her to veto the bills. The British government yielded, and the Foreign Secretary sent a warning letter to the Governor. Britain’s High Commissioner to Australia opposed this approach, but he was told that nothing could be done since the Queen had already approved the message.

In a classic example of bad timing, the Governor of New South Wales received the Foreign Secretary’s warning on the same day that Parliament sent him the bill to abolish appeals to the Privy Council. Rather than risk a royal veto, the state government decided to let the bill lapse even though it had been passed with bipartisan support. What’s interesting about this episode is that it demonstrates how the British government was willing to change course based on input from the Queen.

A few years later, when Australia was negotiating with Britain over the legislation that would sever the remaining constitutional ties between the two countries, the state governments pushed for the right to advise the Queen on state matters in place of the British government. The Queen was not happy with this proposal because she feared being put in an untenable position if a state government advised her to do one thing while the Commonwealth government advised her to do something else. Her reluctance was enough to sway the federal Prime Minister, who told the state governments that he would not recommend that the Queen accept advice from them since he didn’t want to put her in the “embarrassing” position of having to reject ministerial advice. Even when the federal government eventually came around to the states’ point of view, the Queen still demurred.

Ultimately, the Australian federal government felt it had no choice but to give its full backing to the states’ proposal. Until then, it had refused to tender constitutionally binding advice to the Queen on the matter, but it soon became clear that there was no other option. The Queen was told that, even if she disagreed with the idea, the Commonwealth would stand its ground. If she remained opposed to receiving direct advice from the states, she would have to formally reject the federal government’s advice, which would almost certainly have started a constitutional crisis of epic proportions. In the face of a resolute Commonwealth, the Queen reluctantly agreed to accept the advice.

Although she had to accept the Commonwealth government’s advice, the Queen won concessions from Australia. She was keen to establish limits on the state government’s ability to advise her when she was present in a state, and the Australia Bills were amended in light of her concerns. Clause 7(2) was changed to make it clear that the Queen’s functions in regard to a state were exercisable only by the Governor in order to prevent the Queen from being asked to override a Governor’s decision, while clause 7(4) provided that the Queen was “not precluded” from exercising any of her functions when she was actually present in a state. According to Anne Twomey’s book The Chameleon Crown: the Queen and Her Australian Governors, the latter change was made because the Queen wanted to be able to decline a state Premier’s request to exercise her powers personally (pg. 252). The original draft of this sub-clause actually went so far as to explicitly state that the Queen was not obligated to accept advice from state Premiers while in the state, but the Commonwealth objected to language that seemed to enshrine in statute the idea that a constitutional monarch could disregard ministerial advice. Instead, they opted for the “not precluded” formula, which left things suitably vague.

However, the states also agreed to a convention that the Queen would only exercise her powers within a state after prior and mutual agreement between the Palace and the state government. It was a win for both sides. The Queen could take comfort in the fact that state Premiers couldn’t force her into a constitutionally awkward position, while the state governments were reassured that the Queen would only act with their consent.

So what, then, do these events tell us about the Queen? For starters, they suggest that the process of advising the Queen is more complicated than one might expect. Ministers first submit informal advice that is not considered constitutionally binding; it is only when she has accepted the ‘informal’ advice that formal, binding advice is tendered. This is a nice example of how flexible constitutional conventions can be in the Westminster system: it allows the Queen to make representations regarding a proposal while preserving the requirement that she ultimately acts on ministerial advice.

Although Twomey’s findings suggest that the Queen isn’t quite the rubber stamp of popular conception, that doesn’t mean that she’s going around frustrating the democratic process at every opportunity. Both of the examples Twomey uncovered involved situations uniquely personal to the Queen, so it’s understandable that she would be more willing to assert herself in cases like those. Unfortunately, it’s unlikely that we’ll learn more about her relationship with her governments anytime soon. Communications with the Sovereign are totally exempt from disclosure under the UK’s Freedom of Information Act for a minimum of 20 years (and in many cases, they could remain hidden for a lot longer: if the Sovereign is still alive when the 20-year period expires, they must remain classified for the remainder of their life, plus five years). But Twomey’s claim that the Queen is a canny political operator who is adept at using “soft power” certainly seems plausible.

The pitfalls of scene-setting

One of the things that really annoys me about historical fiction is the tendency of some authors to go overboard when it comes to background information. It’s like they’re bound and determined to shoehorn in every single fact that they uncovered in the course of their research, regardless of whether or not it’s actually relevant to the plot. I recently started rereading The Scroll of Saqqara by Pauline Gedge, and several particularly blatant examples of this jumped off the page (though I hasten to add that it’s still one of my favorite books). Take this piece of dialogue, for example:

Sometimes I wish that Grandfather had not moved the capital of the country north. I can see the strategic advantage in a seat of government close to our eastern border and located on a river that empties into the Great Green for good trade, but Memphis has the beauty and dignity of the rulers of old.

That quote is spoken by the protagonist’s son as he and his father sail northward to the capital in question (Pi-Ramesse). But it doesn’t seem natural. It feels like a modern author trying to include another fun fact instead of an ancient Egyptian having a casual conversation with his father. The fact that it’s the only thing the son says in that scene just makes it seem even more awkward.

A few pages later, the protagonist is on the deck of his boat watching Pi-Ramesse come into view. As he watches the scenery pass by, he sees the old city of Avaris, the temple of Set, and “a heap of rubble that Khaemwaset knew was the remains of a Twelfth Dynasty town.” I’m not quite sure why Gedge felt the need to include that bit of information. It’s not relevant to the plot; it’s just another factoid she uncovered, and it’s not even all that interesting.

Base of a statue from Pi-Ramesse. Photo courtesy of Wikimedia Commons.

Now I get the fact that authors who write historical fiction need to provide more description than usual. When you’re writing about the past, you have to do more to help your readers envision the scene. But the tricky part is that your characters, being natives of their world, wouldn’t normally go around explaining everyday things. That’s why I’m not a fan of first-person narrators in historical fiction. It’s incredibly jarring to have the protagonist suddenly provide a detailed description of something that he or she would have taken for granted in real life. I prefer to write in the third person in order to let the invisible narrator do as much of the info dumping as possible.

Going back to Pi-Ramesse and The Scroll of Saqqara, I think it would have been much more effective if, instead of nattering on about the city’s strategic location, the protagonist’s son had commented on its splendor. Judging from the few first-hand accounts we have of Pi-Ramesse, that’s what really stuck in the Egyptians’ minds. They were impressed by the city’s beautiful temples and palaces, not its proximity to the Levant. That would have allowed Gedge to provide useful scene-setting while avoiding a blatant jump into Author Mode.

There’s a very fine line between setting the scene and bogging your story down in detail. Readers are going to have varying levels of interest in the historical setting you’ve chosen, and you can’t assume that everyone is as fascinated with the details as you are.

Canada’s Constitutional Clusterf*ck

Our northern neighbor could be facing a major constitutional headache soon. Two law professors from Quebec have lodged a challenge to the Succession to the Throne Act, claiming that it is unconstitutional.

The Succession to the Throne Act is Canada’s attempt to implement the Perth Agreement, wherein the Prime Ministers of the 16 Commonwealth Realms where Queen Elizabeth II is head of state agreed to change the law of succession. Male-preference primogeniture is to be abandoned, and the Sovereign will be free to marry a Roman Catholic (though the Sovereign will still have to be in communion with the Church of England).

The most straightforward way for a realm to implement the agreement is to enact its own version of the Succession to the Crown Act that the British Parliament passed in April. That is exactly what Australia and New Zealand are doing. However, Canada tried to take a shortcut. Instead of specifically enacting the changes in their own law, they just passed a bill that essentially says “we agree with the British legislation.”

The Harper government maintains that the Sovereign of the United Kingdom is automatically the Sovereign of Canada. Therefore, the succession is, strictly speaking, the domain of British law. However, as James W. J. Bowden has pointed out on his excellent blog Parliamentum, this approach is inconsistent with the Canadian government’s actions during the Abdication Crisis of 1936. Although the British Parliament had passed His Majesty’s Declaration of Abdication Act, Prime Minister Mackenzie King recognized that it wouldn’t bind Canada unless the government ‘opted-in’ under section 4 of the Statute of Westminster 1931. If it hadn’t done so, Edward VIII would have remained the Canadian Sovereign.

But the current government of Canada can’t ‘opt-in’ like its predecessor since section 4 of the Statute of Westminster no longer applies and the British Parliament has surrendered its right to legislate for Canada. In 1982, at the request of the Canadian government, it passed legislation that explicitly relinquished its vestigial authority over Canadian affairs. The relevant section is pretty damn unambiguous: “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 it’s hard to see how the British Succession to the Crown Act could have any legal force in Canada whatsoever.

There’s also the troublesome matter of the Canadian constitution. Under section 41 of the Constitution Act 1982, any constitutional amendment “to the office of the Queen” requires the agreement of all the provinces plus the federal Parliament. The Harper government claims that section 41 only applies to changes that affect the Queen’s constitutional status or her powers. Therefore, changing the law of succession doesn’t require a constitutional amendment.

But Canadian academics have questioned that reasoning. Writing in Maclean’s, Philippe Lagassé, an assistant professor of public and international affairs at the University of Ottawa, argued that since the Crown is a corporation sole, there can be no distinction between the office and the officeholder. He went on to quote the great English jurist William Blackstone, who had this to say about corporations sole:

Corporations sole consist of one person only and his successors, in some particular fashion, who are incorporated in law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense, the king is a sole corporation. [Emphasis mine]

Because of the fusion of office and officeholder inherent in a corporation sole, the government’s contention that the succession is somehow separate from the office seems hard to swallow.

Leaving aside the Crown’s status as a corporation sole, there is also case law that suggests that the law of succession is actually part of the constitution. In 2002, a Toronto politician named Tony O’Donohue mounted a legal challenge to the Act of Settlement 1701 on the grounds that it discriminated against Roman Catholics and was therefore incompatible with the Canadian Charter of Rights and Freedoms. The Ontario Superior Court of Justice dismissed the challenge, holding that the Act of Settlement was part of Canada’s constitution and could not be overruled by the Charter. Mr. Justice Rouleau also suggested that striking the discriminatory portions of the Act of Settlement could itself be unconstitutional since it would amount to changing the office of the Queen without following the procedures set out in section 41 of the Constitution Act 1982.

Curiously, Mr. Justice Rouleau seemed to have difficulty with the idea of the divisibility of the Crown. On the one hand, he held that the law of succession was part of Canada’s constitution, yet he also suggested that Canada was “united under the Crown of Great Britain.” But if Canada is subject to the British Crown, it seems hard to see how the law of succession could be part of the Canadian constitution. The fact that Canada can alter the office of the Queen by a constitutional amendment seems to me to be pretty conclusive proof that the Crown is now a Canadian institution.

The Quebecois law professors are going to put the Harper government in a very uncomfortable position when their case finally comes before the Quebec Superior Court. Not only do they allege a violation of section 41 of the Constitution Act 1982, they also claim that the act is contrary to the Charter of Rights and Freedoms because it restricts the monarch’s choice of religion. This puts the government between Scylla and Charybdis. If it argues that the religious provisions are not justiciable because they are part of the constitution, it essentially confirms the section 41 challenge. But if the law of succession is outside the constitution, then the religious provisions could be in conflict with the Charter!

If the Succession to the Throne Act is ultimately ruled unconstitutional, Canada will likely have to amend its constitution in order to implement the Perth Agreement, and that could get messy. Since the amendment would need the backing of all the provinces, Quebec could use it as a bargaining chip to try to win sovereignty-related concessions. Should Canada fail to implement the Perth Agreement for whatever reason, the other Commonwealth Realms could find themselves stuck. The original plan was for the changes to take effect on the same day across all sixteen realms (that is why the UK’s act doesn’t come into force until the Lord President makes a commencement order), but if there isn’t unanimity, the other governments might decide to back away rather than create a situation where a woman becomes Queen of fifteen of the realms but her younger brother becomes King of Canada.

On the other hand, it’s possible that fears of a Quebecker monkey wrench being thrown into the works could be overstated. I don’t know if Stephen Harper would be willing to engage in much horse trading over a constitutional amendment. Given that the first two people in line for the throne are both men, changing the succession is hardly urgent. If Quebec tried to block the amendment, Harper might be content to call their bluff, secure in the knowledge that the changes don’t need to take effect anytime soon (plus, Quebec wouldn’t actually gain anything by blocking the amendment). So if push comes to shove, Quebec might just hold its nose and vote for the amendment.

 

My new Kindle!

After weeks of hemming and hawing, I finally bought a new Kindle. My old Kindle Keyboard 3G bit the dust in a cat-related accident, so it was time for an upgrade.

Because I’m a cheap bastard, I went with the basic model with the special offers, though the Paperwhite was certainly tempting. Since the basic Kindle no longer has a physical keyboard, a touchscreen would have made the onscreen keyboard a bit easier to use. But I never did much typing on my old Kindle, so it seemed silly to spend an extra $50 for something I would rarely use (yeah, I know you also use the touchscreen to turn the pages, but I kinda like having the buttons for some reason).

Gompers better not break this one!
My new Kindle.

I think the new Kindle looks a lot nicer than the Kindle Keyboard. While the latter always reminded me of the PDAs my dad had in the late 90s, the former is much sleeker. It looks very tablet-like. It’s also a hell of a lot lighter than the older model.

The one annoying thing is that Amazon no longer includes a wall-socket adapter with their new Kindles. Fortunately, I still had the one that came with the Kindle Keyboard. Otherwise, Amazon would have charged me $14.99 for it (and that’s a discounted price that’s only good if you order it along with the Kindle; if I’d waited, the price would have gone up to $19.99!).

My first purchase on the new Kindle was a collection of short stories by Saladin Ahmed entitled Engraved on the Eye. I’m looking forward to starting it later this evening!

 

One of the best games ever gets a sequel

I love Planescape: Torment. Although the graphics are horribly dated (it was released in 1999, after all) and some of the mechanics are a bit cumbersome, the game’s writing is so phenomenal that it’s easy to overlook those things. It’s certainly worlds away from the banal, cliche-ridden dialogue of Diablo III! Planescape is the sort of game that lingers in your mind long after you’ve stopped playing. 

Sadly, Planescape didn’t sell well when it was initially released. But the intervening years have been kind to it, and it continues to appear on lists of the best games. Even now, it’s one of the bestselling titles on GOG, which isn’t too shabby for a game that was released back when we were still worrying about Y2K!

Thanks to its continued popularity, some of Planescape‘s creators have decided to produce a ‘spiritual cycle’ called Torment: Tides of Numenera. Unfortunately, it won’t be set in the Planescape universe since Planescape is part of the Dungeons & Dragons IP and Wizards of the Coast has mothballed that particular setting. But Torment will make use of a setting devised by D & D veteran Monte Cook, so I’m sure it will be just as awesome. Not only that, but Patrick Rothfuss (yes, the Patrick Rothfuss) will also be part of the design team.

Torment is still a long way from release (it’s currently slated to ship in December 2014), but I have a feeling it’ll be well worth the wait.