Category: Geeky stuff

Introducing Woseribre Senebkay

The list of pharaohs has just gotten a bit longer. The University of Pennsylvania has uncovered the tomb of a pharaoh named Woseribre Senebkay, who apparently ruled as part of a previously unknown dynasty based out of Abydos. This news has made it into the mainstream media, but I highly recommend reading the official Penn Museum announcement. A lot of the mainstream coverage has been sort of silly (such as this gem from the Daily Pennsylvanian: “Most tombs have unadorned walls, stripped of their decorations by ancient plunderers”.[note]Tomb walls were decorated with frescoes and carvings. Not exactly something a tomb robber would make off with![/note]).

As is so often the case, the tomb was plundered in antiquity, so there isn’t a lot of bling left. Poor Senebkay even suffered the indignity of having his mummy torn apart by grave robbers. Judging from the remains of his canopic chest (which had the name of a previous royal owner covered over with gilding!), it seems that his burial may have featured a lot of ‘recycled’ material.

Senebkay reigned c. 1650 BCE during a time scholars call Second Intermediate Period. The SIP was a time of political fragmentation and disorder, and we don’t really have a firm grasp of the chronology. Until now, Senebkay was pretty much unknown to history, though the Turin King List contains two fragmentary references to kings with similar throne names.

Ratty bits of history.
The Turin King List. Image courtesy of Wikimedia Commons.

Although Senebkay styled himself ‘King of Upper and Lower Egypt’ in his tomb, he was probably little more than a local potentate whose domain was limited to Abydos and its environs. In his time, the Delta was under the control of foreign kings who belonged to a group called the Hyksos (a word that’s derived from the Egyptian Ḥq3-ḫ3st, or ‘Rulers of Foreign Lands’), while Thebes was ruled by a dynasty that would eventually expel the Hyksos and reunify Egypt. The presence of reused material suggests that he might have been comparatively poor, though it’s also possible that he simply died before he had time to acquire his own funerary equipment.

This discovery just goes to show that, despite all the advances that Egyptology has made over the past 200 years, there are still gaping lacunae in our understanding of Egyptian history.

The Parliament Acts and the EU Referendum Bill

A while back, David Cameron told his backbenchers that he was prepared to use the Parliament Acts on the European Union (Referendum) Bill. Although this announcement won plaudits from many Tory MPs, using the Parliament Acts to get the bill onto the statute book will be highly problematic.

The Parliament Acts 1911 and 1949 allow for laws to be made without the consent of the House of Lords in certain circumstances. In order to qualify, a bill must be rejected by the Lords in two successive sessions of Parliament, and at least a year has to elapse between the bill’s second reading in the Commons during the first session and its third reading by the Commons during the second session (yeah, it’s complicated). Use of the Parliament Acts is incredibly rare–they’ve only been used seven times since 1911 (the last time was in 2004 when the Blair government used them to get the Hunting Act onto the statute book).

By JLogan (Own work), via Wikimedia Commons


Time is not on the European Union (Referendum) Bill’s side. It’s currently in the House of Lords, where a second reading debate has been scheduled for January 10. If it receives a second reading (and it almost certainly will–the Lords rarely reject bills outright), convention dictates that at least two weeks should elapse between second reading and the start of committee stage in order to give peers plenty of time to table amendments. Committee might take a while (the Lords consider every amendment, and the bill’s opponents will likely table a lot of them to slow things down), and another fortnight will have to elapse between the end of committee stage and report stage. Then three days have to elapse between the end of report and third reading/passage.

However, there’s a very important catch: if the Lords amend the bill (which seems likely, given the number of Europhile peers), the bill will have to return to the Commons so they can vote on the Lords’ amendments. But since the bill is a private member’s bill rather than a government bill, the amendments can only be considered on certain Fridays, the last of which is February 28. I highly doubt that the Lords will be finished by then–I suspect that an alliance of Labour and Europhile peers will do everything they can to prolong the proceedings (and unlike our Senate, there’s no “nuclear option” to curtail debate!). If the Commons can’t find the time to consider the Lords amendments, the bill will automatically fall when Parliament is prorogued ahead of the State Opening of Parliament in May.

David Cameron seems to think that, if the European Union (Referendum) Bill is reintroduced in the next session, the Parliament Acts can be used to force it onto the statute books. But as I mentioned earlier, the Parliament Acts can only be used if a bill has been rejected in two successive sessions of Parliament. Section 2(3) of the Parliament Act 1911 states that “A Bill shall be deemed to be rejected by the House of Lords if it is not passed by the House of Lords either without amendment or with such amendments only as may be agreed to by both Houses.” But it’s not clear if that would apply in a situation where the Commons didn’t even consider the Lords’ amendments due to procedural restrictions. Calling that a “rejection” by the Lords would seem rather perverse!

This is uncharted territory. In the past, the Parliament Acts have only been used for government bills, so finding legislative time was never an issue. Ultimately, it will be up to Speaker John Bercow to decide whether or not the Parliament Acts can apply.

There’s another potential catch: even if a bill meets the requirements of the Parliament Acts, the Commons can decline to present it for Royal Assent.[note]See section 2(1) of the Parliament Act 1911.[/note] This has never happened before, so it’s not clear how this discretion would be exercised in practice. In the past, it’s been a moot point since the Parliament Acts have only been used for government bills, and the government obviously has a majority in the Commons. But Cameron is in a coalition, and his Liberal Democrat partners are strongly Europhile. If they were to join forces with Labour, they could outvote the Tories and prevent the bill from being presented for Royal Assent under the Parliament Acts.

I suspect that Cameron would personally prefer to let the European Union (Referendum) Bill die out rather than open an enormous can of worms by invoking the Parliament Acts. But Europe continues to be a festering boil on the body of the Conservative Party, and he might decide that it’s best to lance it once and for all, even if it results in a lot of sturm und drang.

 

There’s another potential catch as well.

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The Telegraph’s World War I Archive

The Telegraph is doing something cool to mark the centenary of World War I. They are republishing every issue of the Telegraph that came out between January 1, 1914 and December 31, 1918.

I highly recommend checking it out, even if you’re not a WWI buff. There’s a wealth of fascinating material in the January 1 issue alone, from coverage of Archduchess Isabella of Austria’s unprecedented decision to become a nurse[note]Her marriage ended in divorce (which was rather scandalous at the time), and custom dictated that she should retire to a convent.[/note] to the continued fallout from the Kikuyu Controversy[note]Two Anglican bishops in Africa attended an ecumenical conference, and the Bishop of Zanzibar (who was a staunch Anglo-Catholic) denounced them as heretics for cozying up to nonconformists.[/note]

However, hindsight has made the editorial rather poignant:

Happily, our foreign relations are such as to cause no sort of uneasiness, and there has been a steady improvement in the tone and temper of our intercourse with Germany. Everyone will hope that the New Year may pass without the outbreak of further trouble in the Near East.

Doctor Who: “The Time of the Doctor”

It’s official: there’s a new Doctor in town. Matt Smith has handed the TARDIS keys to Peter Capaldi in the much-balyhooed Christmas special “The Time of the Doctor.” As a newcomer to the Whoniverse, this was the first time I’d actually seen a regeneration in ‘real time’ as opposed to watching it several years later on Netflix, and I thought the whole thing was something of a mixed bag.

Basically, a veritable “Who’s Who” of the Doctor’s enemies descended on Trenzalore so they could besiege him in a town called ‘Christmas’ that looks like it was built from Department 56 houses. Meanwhile, the Time Lords (who were revealed to be trapped in a pocket dimension in the 50th anniversary special), are trying to make a comeback by sending messages through the cracks in the universe that first appeared in series 5. The message is simply “Doctor Who?”; if the Doctor responds by telling them his real name, his fellow Time Lords will know they’ve found the right universe and burst in like the Kool-Aid Man.

The Doctor knows that, if he allows the Time Lords to return, it will simply reignite the Time War. At the same time, he’s determined to protect the people of Christmas and their cutesy, overpriced ceramic houses. He ends up spending 300 years defending Trenzalore, and he’s convinced that he’s finally going to bite the bullet since Time Lords are limited to thirteen incarnations[note]Even though Matt Smith’s Doctor has always been called Eleven, he’s technically the thirteenth Doctor when you take into account the War Doctor and Ten’s aborted regeneration in “Journey’s End.” The notion that Time Lords are limited to thirteen incarnations dates from “The Deadly Assassin.”[/note].

Obviously, the BBC is not going to let a technicality like that get in the way of such a lucrative franchise, so it was pretty much a given that they’d find some way around the regeneration limit. Unfortunately, their solution was somewhat hamfisted: the Doctor’s companion, Clara, talked to the Time Lords through the crack-in-the-universe and begged them to help him, saying that “the Doctor” was his name for all intents and purposes. This somehow convinces them to deliver a burst of extra regeneration energy through the crack, which the Doctor uses to slaughter the Daleks who are about to destroy Christmas. It all seemed too convenient, and if they could deliver the regeneration energy, I don’t know why they didn’t just break through then and there.

The pacing of “The Time of the Doctor” also felt rushed. The assembly of the Doctor’s enemies never really had a chance to feel menacing since it pretty much came out of the blue[note]Unlike earlier series, series 7 didn’t have any kind of overarching plot, so “The Time of the Doctor” pretty much stood on its own. I think the Siege of Trenzalore would have felt a lot more important if it had been foreshadowed throughout the series.[/note]and most of the enemies only got cameos. And while Steven Moffat did his best to wrap up existing plot threads, most of that material seemed better suited to a behind-the-scenes feature rather than an episode.

The episode did do a nice job of letting Matt Smith show off his acting chops. Although Eleven has never been my favorite Doctor (I’m a Ten man, myself), Smith is an excellent actor who arguably brought more nuance to the role than any of his predecessors (at least as far as the revived series is concerned–I haven’t seen any of the pre-2005 stuff). Smith was especially good at playing the aged Doctor after 300 years on Trenzalore. Done wrong, it could have degenerated into farce, but Smith managed to capture an old man’s physicality remarkably well.

I also loved Eleven’s final soliloquy. Capturing the essence of an entire character in a single piece of dialogue is no mean feat, yet Moffat managed to write a fitting tribute to Eleven. It had an understated poignance that stood in marked contrast to the overwrought melodrama of Ten’s sendoff.

Brief as it was, Karen Gillan’s cameo as Amy Pond also deserves a mention. The stories of Eleven and Amy were uniquely intertwined, so it was fitting that he should share his final moments with her, even if she was just a figment of his imagination.

Sadly, it will be a while before we get to see what Peter Capaldi’s Doctor is like. They haven’t even started filming series 8 yet, so we might have to wait until Fall of 2014 for new episodes. Damn you, British brevity!

 

Ahistorical fiction

The Elder Mr. Loch recently alerted me to The Final Sacrament by James Forrester. Set in Elizabethan England, the premise of the book is that Queen Elizabeth I is not the legitimate Queen of England because of Anne Boleyn’s previous relationship with the Earl of Northumberland. William Harley, who holds the office of Clarenceux King of Arms, has  proof of Boleyn’s precontract, which makes him a wanted man.

Even today, the Kings of Arms still dress like playing cards.
Clarenceux King of Arms. Public Domain image via Wikimedia Commons.

My first reaction upon hearing of the plot was to roll my eyes. The idea that Anne Boleyn might have been precontracted to the Earl of Northumberland was not exactly a secret. In fact, the Countess of Northumberland even tried to use it as grounds for annulling her marriage to the Earl. But Lord Northumberland swore on two separate occasions that there had been no such precontract. He even stuck to his story when agents of Henry VIII wanted him to say the opposite. If there had been a precontract between Boleyn and Northumberland, it would have arguably given Henry grounds for seeking an annulment of his marriage. As we all know, Henry found another way of getting rid of his queen.

While it’s true that a precontract might have rendered Elizabeth illegitimate, she was declared illegitimate anyway by Act of Parliament after her mother’s execution. A few years later, she was legitimized and returned to the line of succession. Since her legitimacy was ultimately determined by Parliament, I’m not sure the document that forms the book’s MacGuffin would really be as explosive as it might seem as first glance. I’m sorely tempted to pick up the book just to see how he deals with the succession legislation!

Although the historian in me took a dim view of the way Forrester seemed to approach his subject, I had a change of heart when I checked out his website. “James Forrester” is actually the pen name of of Dr. Ian J. F. Mortimer, who is a rather well-known historian. On his James Forrester website, he explains why he felt the need to adopt a separate persona for writing fiction. He’s quite upfront about the fact that he’s willing to change the details if it suits the story:

In Sacred Treason I changed the name of Henry Machyn’s wife from Dorothy to Rebecca because one of the early readers of the manuscript said ‘I couldn’t help thinking of the Yellow Brick Road every time she was mentioned’. I also changed the name of my main protagonist from Harvey to Harley. It’s close enough to show I know who the real Clarenceux King of Arms was in 1563; but I deliberately wanted to be inaccurate so people could be sure he is fictional. This is very different from most historical novelists’ way of working, many of whom have a strict rule about not contradicting the ‘known facts’.

You might think that this would have me frothing at the mouth, but it doesn’t. I’m willing to tell my inner pedant to STFU if it’s clear that the author did their homework and took the trouble to get things right whenever possible. But if you can’t even get the big things right, you’re not going to get any slack at all.

Demon Advent Calendar

The Demonology Project has come up with a cool way to promote themselves over the festive season: the Demon Advent Calendar. Each day, they’ll post a different Egyptian demon, and they’re certainly drawing from eclectic sources. Day 1 featured “He Who Drives Off Those Who Would Demolish” from the Book of Two Ways, while Day 2 featured an unnamed man-eating hippo demon from a magician’s wand in the Metropolitan Museum of Art.

This is a great example of how academic projects can engage with the public in a fun and interesting manner. One of my big gripes about the Academy is its tendency to ignore the little people outside the ivory tower, so I’m always happy when I see academics bucking that trend. I also like that the Demonology Project hasn’t felt the need to dumb things down. They provide just the right amount of info to get the point across without burying non-specialists in a bunch of extraneous details.

Now if only the Demon Advent Calendar came with chocolate… 🙂

The Legend of Korra disappoints, again

The Physicist and I finally got around to finishing Book 2 of The Legend of Korra, and I was underwhelmed, to say the least. Warning: spoilers ahead.

First of all, what the hell is up with Jinora? Her last-minute-save-the-world intervention seemed like a total ass-pull, and it was hard to tell exactly what was going on. If you’re going to have a tertiary character save your protagonist’s ass, you need to do a much better job of foreshadowing it–a propensity for cuddling cute spirit animals isn’t enough.

Korra’s duel with UberUnalaq was also unsatisfying. It didn’t really have any emotion–it was just two giant beings slugging it out like they’re in a Godzilla movie. I would have liked to have seen more of an emotional conflict between the two of them. Unalaq is Korra’s uncle and he had her father thrown in jail on trumped up charges, but Korra basically reacts to him like he’s a random Monster of the Week.

The other problem with Unalaq is that his character development was incredibly uneven. At first he starts out as a well-intentioned extremist, but he abruptly becomes a garden-variety villain in the last few episodes. I would have liked to have had a better idea of why he thinks that unleashing Vaatu is going to make the world a better place. Even if he thinks that the spirits have gotten a raw deal, releasing the spirit of chaos and darkness isn’t exactly the next logical step. Now it seems that he just did it for the Evulz, and that’s unsatisfying.

Compare that with Zuko and Azula from the first series: we had a much better idea of what made them tick and why they acted the way they did. Because the audience actually got to bond with them, they were much more satisfying as villains.

The lack of character development isn’t confined to Unalaq. Korra suffers from it, too. The problem is that she doesn’t seem to learn from her mistakes. At the end of Book 1, she supposedly learned that it’s okay to rely on others, yet when Book 2 began, she was back to being a lone wolf. It also doesn’t help that she remains a flat and uninteresting protagonist. She needs to have more depth beyond a kick-ass-and-take-names attitude. And I wish the writers would lay off the Korra/Mako relationship drama. It’s tepid at the best of times since the two characters don’t really have any chemistry.

I was also kind of annoyed by the whole Varrick subplot. It felt like little more than a series of plot contrivances, and in the end, it didn’t really go anywhere. Varrick certainly isn’t punished for his crimes: the last we see of him, he’s escaping with his loyal assistant on his back (trust me, it makes sense in context).

I think a lot of Korra’s problems ultimately stem from the decision to have these truncated seasons. Filler episodes are not bad. Done right, they can help the characters grow and advance the meta plot. I think the best example of this is probably “The Beach” from Book 3 of The Last Airbender. That episode really had nothing to do with the main plot, but it did a great job of giving us background info about Zuko and Azula. There’s nothing like that in Korra, which is why everyone seems so damn flat.

On a more positive note, I liked that the writers actually did something risky by having Korra’s connection to her past lives severed permanently (?), though the impact of this change was somewhat reduced by the fact that Korra never really had much of a relationship with the past Avatars.  That could set the stage for some truly interesting plot developments in Book 3, provided they don’t go and hit the reset button within the first few episodes.

I enjoyed watching the interactions between Tenzin, Bumi, and Kya. We don’t really know what Aang was like as an adult, so it’s interesting to hear what his kids thought of him. It seems that he wasn’t exactly a model father, and he played favorites with Tenzin since Tenzin was the only airbender among his progeny. One thing I’ve always liked about Aang is that he’s generally not a Gary Stu. He’s always had flaws, and that made him a lot more interesting.

Finally, I really liked the art of Book 2, particularly the glimpses of the Spirit World and the flashbacks that made up “Beginnings” parts 1 and 2. Avatar has always been exceptionally well animated, and Book 2 has some of the most stunning episodes of the entire series.

Despite my disillusionment with Korra, I’ll still watch Books 3 and 4. I just hope it gets better….

 

 

The truth about Crown Consent

The House of Commons’ Political and Constitutional Reform Committee is currently in the midst of an inquiry into one of the more arcane facets of parliamentary practice: Crown Consent.

Crown Consent is distinct from Royal Assent, which is what transforms a bill into an Act of Parliament. Crown Consent is basically an announcement on behalf of the Queen that she has consented to place her prerogative or interest (or both) at the disposal of Parliament for the purpose of a given bill. Similarly, if a bill affects the interests of the Prince of Wales in one of his many capacities, he has to give consent, too. The method of signifying consent and the timing of the announcement varies between the Lords and the Commons, though in both Houses, it must be signified by a Privy Counsellor. If it is not signified, the bill cannot be passed and, in some cases, it cannot even be debated.

The exact test for determining whether or not a bill requires Queen’s or Prince’s Consent is rather murky, though the Cabinet Office has published the internal guidance used by the Office of the Parliamentary Counsel (they’re the ones who draft bills). While some cases are fairly obvious (e.g. the Succession to the Crown Act 2013), others are more obscure (the Animal Welfare Act 2006)

Crown Consent has caused some sturm und drang lately, with some of the more excitable segments of the British press calling it a “secret royal veto.” Of course, like most of the Crown’s powers, the power to grant or withholds consent is exercised on the advice of ministers. Obviously, the government is going to advise the Queen to grant consent for all of its own legislation, and the Office of the Parliamentary Counsel’s guidance makes it clear that the government will recommend that consent be granted even if it opposes a bill (see section 7.4). That being said, there have been times where a government has refused to recommend that consent has been granted because ministers disagreed with a bill, such as the Peerage (Ireland) Bill in 1868 and the Titles (Abolition) Bill in 1964.

One of the most notable cases where Crown Consent was not signified was Tam Dalyell’s Military Action Against Iraq (Parliamentary Approval) Bill in 1999. This has generated a great deal of rather ill-informed commentary from the likes of the Guardian and the Huffington Post (the latter actually went so far as to headline an article “Queen Vetoed the Passing of War Powers to Parliament, Whitehall Documents Reveal”). But while it is true that the Crown Consent was not signified for that particular bill, contemporary press reports indicate that Tam Dalyell deliberately refused to seek consent. The BBC quoted him as saying “I am not going crawling to the Queen. This has nothing to do with her.” Now one might sympathize with his point of view, but the blame for the bill’s failure rests with him, not Buckingham Palace.

During their testimony before the Political and Constitutional Reform Committee, the clerks of both Houses of Parliament said that the requirement to seek Crown Consent is a matter of parliamentary practice, not law, so it can be abolished whenever Parliament wants. Although Crown Consent isn’t as sinister as the Guardianistas would like you to believe, it’s admittedly hard to see why it should continue. Unlike Royal Assent, which at least has a symbolic purpose, Crown Consent is little more than a fussy bit of parliamentary arcana. And although modern convention favors granting Crown Consent whenever necessary, it could still theoretically be used to stifle debate on a measure that the government didn’t like. It will be interesting to see what the committee ultimately recommends.

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.

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.