Here and there – Black Knight plays White Queen

The events known as the Dismissal of 1975 have come back to the front page of our press with the release of correspondence between the Palace in London (on behalf of the Queen) and the Governor-General (Sir John Kerr) in Australia.  Those who had the custody of those documents had resisted disclosing them.  The resistance was fierce and prolonged.  It is hard to think of a good reason why the people of Australia should have been prevented from getting access to documents that may throw light on one of the most contentious political episodes in our history.

At the heart of that dispute was the question of what is the proper role of the executive of the Commonwealth – the Queen and the Governor-General – in resolving a deadlock between the two houses of Parliament.

The dispute had arisen because one party had used its numbers in the Senate to block supply to the government with a view to forcing an early election and, as I recall, state governments had filled Senate vacancies with people they thought would be amenable to their views.  The government had been acting badly, but there were good grounds to suggest that the opposition parties had breached long standing political conventions in the way in which they were blocking supply.  The atmosphere was worse than tense.  It was venomous.

The answer about the proper role of the Queen and the Governor-General in our political affairs was not given by the Queen.  The answer was driven from London from advisers in the Palace and from the Governor-General and his staff in Canberra.  The Queen, we are told, had no part in the decision.  According to the correspondence now released, the decision reached by her advisers in the Palace and the Governor-General in Australia was that the Queen should have nothing to do with this crisis in Australia, and it should all be left to the Governor General – albeit with the benefit of advice to him from the staff of the Queen at the Palace.  The decision that the Queen should play no part extended to a decision that she should not be told in advance what action the Governor-General might take.

All that raises the question – if the Queen has no part to play in resolving an issue like this, what is the point of keeping the Queen as part of the government of the Commonwealth of Australia?

The Constitution in section 61 provides:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

In considering this provision, we should remember that the Constitution was contained in a schedule to an act of the British Parliament that was passed at the time when Great Britain was at the pinnacle of its power ruling over one of the greatest empires in the history of the world – if ‘great’ is an appropriate epithet for any empire.  When the mother country granted former colonies their independence, as it had done with Canada and as it would do with many other nations in Africa and Asia, it did so by setting up the constitutions of those nations so that they would follow what the British were reasonably entitled to believe was their greatest contribution to the world – the rule of law under the common law and the Westminster version of parliamentary democracy.  You can, if you wish, test the validity or worth of that faith by looking at the subsequent histories of, say, the former colonies of Belgium, France, Germany, Holland, or Italy.

The terms ‘power’ and ‘vesting’ that appear in s. 61 may at times be legally charged, as may be the notion of delegation implicit in the stipulation that the Governor-General may exercise those powers of the Queen, but the intention and effect of this law is plain enough.  The mother country is bequeathing its system of government to the fledging nation that it is giving birth to.  If you look at s. 61, you see that the powers that are exercisable by the Governor-General are the powers of the Queen.  The law says that the Governor-General acts as ‘the Queen’s representative.’  It is like the relation between principal and agent developed by the common law.

In the business of running the government, the Governor-General has the powers of the Queen.  And part of our overall constitutional framework is that the Governor-General, like the Queen, can only exercise those powers on advice from the Ministers of the Crown who are members of parliament and who have the confidence of a majority of that parliament.

There is therefore no need to ask what might happen if there was a dispute between the Queen and the Governor-General as to how those powers should be exercised – each of them can only act on the advice of the government of the day.  It follows of course that it would not be open to the Governor-General to act in a manner that is denied to the Queen – by, for example, acting not just without the consent of the government, but by acting against the express wishes of that government.  To put it more broadly, it is difficult under our law to envisage an agent having more power than the principal.  Perhaps we might consider the analogy of chess – the queen is much more powerful than a knight, but the knight moves in a way that the queen cannot; a player who sacrifices a queen for a knight is mad; and the king is untouchable.

The debate, if that is what it was, about the ‘reserve powers’ of the Governor-General calls to mind the issue of the ‘royal prerogative’ in the seventeenth century.  The Stuart kings could not shed the illusion that their powers – the prerogative of the Crown – came from God – and could only be taken from them by God.  That issue was resolved against the Crown in the events known as the Glorious Revolution of 1788-1789.  James II, the last of the Stuarts, decamped ingloriously, heaving the royal seals into the Thames as he went, possibly reflecting, as one mordant historian remarked, about that part of the neck that was severed when the English cut off his father’s head; Dutch troops patrolled the streets of London; and the parliament and the Queen, who was the daughter of James II, and William of Orange signed the Hanoverians up to supply a line of house trained kings from Germany to run things in England.  This is where we get the supremacy, or, if you prefer, the sovereignty of parliament.  Virtually all powers of the Crown were subject to the will of the people in parliament.  Looking back on it now, this does look like a pan European solution to a very English problem.  The efforts of the French to follow suit a century later met a much harder fate.

Lord Denning, am English jurist of last century, did not pussy-foot about the English solution.

Concede, if you wish, that, as an ideology, communism has much to be said for it: nevertheless, the danger in a totalitarian system is that those in control of the State will, sooner or later, come to identify their own interests, or the interests of their own party, with those of the State: and when that happens the freedom of the individual has to give way to the interests of the persons in power.  We have had all that out time and again in our long history: and we know the answer.  It is that the executive government must never be allowed more power than is absolutely necessary.  They must always be made subject to the law; and there must be judges in the land who are ‘no respecters of persons and stand between the subject and any encroachment on his liberty by the executive.’  We taught the kings that from Runnymede to the scaffold at Whitehall [the execution of Charles I]: and we have not had any serious trouble about it since.

It therefore came as quite a surprise to learn from the correspondence now released that the staff of the Queen at the Palace and the Governor-General in Australia went out of their way to ensure that the Queen had no notice at all of what would be the most significant step ever taken purportedly on behalf of the Queen in the history of the Commonwealth of Australia.  Of course in the day to day business of government, the Queen is never consulted.  But on what basis did those who advised Sir John Kerr about his powers decide that the Queen should be not be informed or in any way involved in the way that her powers should be exercised in a manner that had never been done before?

And although the Queen could only act on the advice of the government of the day, the Governor-General was acting in this case in a manner expressly contrary to that advice.  It has always seemed to many to be odd to say that the person entrusted with the powers of the Queen could exercise those powers in a manner expressly denied to the Queen – that in some ways his powers were more plenary than when exercised by Her Majesty.  What the Palace correspondence shows is a Governor-General acting in a manner that was contrary to an essential pillar of our inherited Westminster system of government.

The reason offered for that course is that if the Governor-General had warned the Prime Minister of his intention, the Prime Minister could have asked the Queen to remove the Governor-General and she would then have been obliged to do so.  Is that not a matter of the Governor-General acting peremptorily in order to preclude the possibility of the Queen acting appropriately?  And does that just leave us with Alice in Wonderland?

If after the Governor-General had acted as he did and he had informed the Queen, what may have been the case if the Queen had been of the opinion that she would have acted differently?  And how could Her Majesty have said otherwise when she was obliged to act, and only to act, on the advice of her Australian ministers?

It is not therefore surprising to read that a former member of the Palace bureaucracy says now:

I suspect that the advice that would have been given to him [Sir John Kerr] was that it would have been prudent to hold off a bit longer.  But obviously he felt the pressure of these two contingencies about the election and the financial situation were too pressing to ignore.  I think it was very proper of him not to ask and in ways which are now very evident, very sensible and satisfactory that he didn’t.  There was considerable discussion of a hypothetical nature about the existence of, and appropriateness of, applying to those reserve powers, but at no stage did the Governor-General ever ask the Queen to suggest that he should act in any particular way, and nor did she offer that advice through her private secretary…

The press reports that this gentleman and the author of the Palace letters thought that Australia was embroiled in a ‘political’ and not ‘constitutional’ crisis and concluded that the Governor- General had intervened ‘too precipitously’ to resolve the deadlock over supply.

All of us in London thought that if Kerr had been able to hold his nerve for just a day or two more, there probably would have been a political solution to the problem, which would have avoided a lot fuss.

And ‘a lot of fuss’ there was – that might have been avoided if the various officials in London and Canberra had not sought and managed to keep the Queen out of this dispute.

And one day someone in Whitehall may illuminate us about the distinction between a ‘political’ crisis and a ‘constitutional’ crisis.  It looks to be the kind of question that could have tantalised Aristotle or Plato or Augustine or Aquinas in different ways.  Some may be reminded that the medieval Schoolmen agonised over the question of how many angels can dance on the point of a needle.  This is not the kind of speculation that we need to see in the government of our nation.

Well, what are we now to make of all this?  Does it not just look like an episode of Yes, Minister that has gone horribly wrong?

Many Australians, including me, were infuriated by what happened in 1975.  Now many of those Australians, again including me, just feel personally insulted that the fate of their government in 1975 had been determined by the actions of Palace officials in London and a Governor-General here who thought that it was appropriate for him to act in the way that he did without notice either to the Queen of Australia or to the Prime Minister of Australia.

When you come to think about it, there was truly chutzpah to behold in civil servants in the onetime seat of a mighty empire involving themselves in the affairs of onetime colonies and helping to bring about a change of government – without any notice to its head of state or prime minister. The term coup d’état may be too strong, but I know how some people feel.  If there is one thing worse than a monarch wanting to intervene in our affairs, it may be a monarch who wants nothing to do with us, even though our constitution makes her the primary repository of the executive powers of the Commonwealth.

Now, forty-five years later, we may wonder if the reaction to the election of Gough Whitlam in Australia might now be seen in the reaction to the election of Barak Obama in the United States – ‘this aberration is not the way that we the better people are used to doing business,  and we may therefore just have to bend the rules a little in order to restore the status quo; democracy is at its best when it is duly guided, and sometimes the people just forget what’s best for them.’

It brings to mind an immortal cartoon of Ron Tandberg.  Just before he retired, Sir John put on a routine of another but much better known Sir John – Falstaff.  Sir John presented the Melbourne Cup when it was obvious to tout le monde that he was as full as a state school.  Tandberg showed him blotto with crosses for eyes under a silly, tilted top hat.  The caption was: ‘I love making presentations in November.  Like when I gave the nation back to its true owners.’

Gough Whitlam said Sir John was the last of the Bourbons.  He might as well have said Stuarts – they were very helpfully incorrigible.  But it is notorious that those in the diaspora cling to relics long after their time has passed.  Sir Lewis Namier said that the US is ‘in certain ways, a refrigerator in which British ideas and institutions are preferred long after they have been forgotten in this country’.

Well, two things are clear enough – indeed, two things are transcendentally clear.  First, very few people in Australia want to give any power to any government officials in London to settle their political disputes.  Secondly, no one in London wants to be involved in any such Australian disputes.  The time of this institution in Australia has passed from us long ago.  That being so, the presence of the monarchy in our body politic is as useful as the appendix in my body and it is time for us to achieve independence from Great Britain and proceed under our own head of state.

 

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