the hard road to soft power: the crown prerogative and the evolution of constitutional monarchy
“In England power started with the Crown…. At the centre of everything — the social, the religious, the legal, and the political — was the Crown. This was an age [the Tudor] when the Crown did not merely reign; it ruled.”
— Adam Tomkins, professor of public law, University of Glasgow, 2013.
“The monarch is now able to do virtually nothing without the authorization of his or her constitutional advisers, the Cabinet, who are, of course, always accountable to Parliament.”
— R. MacGregor Dawson, professor of political science, University of Toronto, 1947.
On Christmas Day 1066, William the Conqueror was crowned king of England in London’s Westminster Abbey. William had gained the Crown by invading England and defeating the forces of Harold II at the Battle of Hastings on October 14 of that year. When William was crowned by the Archbishop of Canterbury, he was recognized as possessing all the rights and privileges of all the kings of England who had preceded him. In 1066, these rights and privileges of the monarch, known as the Crown prerogative, were vast. When William came to the throne, no form of parliament yet existed — and wouldn’t for another two centuries. So, as king, William had the power to make law, set public policy, rule by decree, and impose any form of taxation on his people. He had the right to declare war, lead his army into battle, make peace, and direct foreign policy. It was in his authority to govern his realm as he saw fit, appoint any men whom he desired to government offices, and select ambassadors, judges, and privy councillors. He had the privilege of establishing governing institutions and courts of law, and he maintained the power to make judicial decisions in any case he wished. Having the right to impose capital punishment on, or extend mercy to, any offender, he held the power of life and death over all his subjects.
William’s power and the authority of his immediate descendants would be unrecognizable to those wearing the modern Crown. If William I could see the immensely reduced rights and privileges possessed by Elizabeth II, he would likely shake his head in disgust. What has become of his once mighty Crown? The answer is this: the greatness and near incalculable nature of the Crown’s power had grown so fearsome to those vulnerable to it that the king’s very subjects have slowly restrained, controlled, and circumscribed it.
This process of limitation, or the taming of the Crown prerogative, is one of the great narratives in English and British history, and we in Canada are its heirs and beneficiaries. A number of crucial events in this political evolution stand as milestones, marking the slow but steady transformation of a near absolute Crown with frightening powers into a constitutional monarchy upholding core principles of democratic governance. Elements of the former Crown prerogative remain to this day, however, with substantial powers still residing in the Crown-as-monarch. Sometimes her or his power is subject to the advice of first ministers, and sometimes it is not. These remaining prerogative powers, found solely in the hands of the sovereign and her vice-regents, can be characterized as “hard” powers, deriving from a pedigree dating back to William the Conqueror. The entirety of chapter 5 will be devoted to them. Much of this chapter will concern itself with the exercise of the Crown’s more modern “soft” powers. These powers are the kinder and gentler prerogatives of influence and persuasion, and they are the ones that now dominate the interactions between the Crown-as-monarch and the Crown-as-executive. As always, to understand the nature of the Crown today, we need to know its yesterday.
In the beginning was the Magna Carta. On the fields of Runnymede on June 19, 1215, England’s great barons, tired of the weak and arbitrary leadership of King John, and facing unprecedented tax increases, forced him to sign the Magna Carta, the Great Charter. This hallowed document subjected the king to the rule of law and the beginning of representative government. Within its text are provisions guaranteeing the redress of feudal grievances, the promise that “no freeman shall be taken or imprisoned … or exiled … but by the law of the land,” and the stipulation that the Crown is not to levy certain forms of taxation “except by the common counsel of our realm.”[1] The Magna Carta also had an enforcement mechanism. Clause 61 created a twenty-five-man council of barons whose duty it was to ensure that the king obeyed the new charter. In clause 61 lay the seed of parliament.
The first parliament in English history was convened late in the thirteenth century by Edward I. The king needed revenues for yet another war with the Scots, but fearing civil unrest if he proceeded to do so arbitrarily, he sought a compromise. In 1295, and true to the spirit of the Magna Carta, he summoned representatives of civil society to London and invited them to participate, along with the barons, in a “Model Parliament.” In return for agreeing to the king’s tax measures, these representatives would have the right to speak with the king regarding how this money would be spent and how the realm would be governed. Edward I, the “Hammer of the Scots,” stands in English history as the “Father of Parliament.”[2]
The end to real monarchical power arrived in the seventeenth century, when the English Civil War pitted the monarchy against Parliament, the principle of the divine right of kings against that of parliamentary supremacy, and Charles I against Oliver Cromwell. This war was very much a battle of ideas about the exercise of political power. Charles stressed that as king, he ruled by divine right, chosen by God to reign over England. To Cromwell and his parliamentarian allies, such ideas were nonsense. To Cromwell, God, not man, was king, and in England, Parliament must rule. The war became a contest to see who, or what, would govern England, and, by 1648, the answer had been decided. Charles was captured, tried for treason, and executed in January 1649.[3]
With this regicide, England had entered new territory. The execution demonstrated that Parliament was supreme in the land. Parliament also disestablished the monarchy, turning England into a republic under the leadership of Cromwell. The eleven years of his rule, and that of his son, mark the only time in English, and subsequently British, history when the state existed as a republic. By 1660, however, facing a growing desire in Parliament and within the country for a return of the monarchy and the Stuart royal family, Parliament voted to re-establish the monarchy and offer the throne to Charles II, the eldest son of the late king.
When Charles II returned to London in May 1660 from his exile in France, he returned to a very different country from the one he had fled during the Civil War. His invitation to return came from Parliament, which in and of itself highlighted the new power relationship existing between the Crown and Parliament. As a condition for reassuming the throne, he had to publicly declare that there would be no reprisals against those who had fought for Parliament during the late war — with the exception of those who had executed his father. He was also obliged to affirm that he would respect the constitutional role of Parliament and would exercise his powers with the support of Parliament. The three years following the death of Charles II in 1685 were chaotic ones as James II, his younger brother, sought to re-establish the divine right of kings and re-Catholicize England. Once again England was at war with itself, and, in 1688, Parliament exiled the current king, offering the Crown to William of Orange, ruler of the Netherlands. In William, the English Parliament found an attractive leader. He was a warrior-king; he was married to Mary, the daughter of James II, but a woman who was Anglican; he was a supporter of parliamentary government; and he was a Protestant willing to convert to Anglicanism. On December 23, 1688, William entered London to be met by a delegation of parliamentarians offering him the Crown. This event would go down in English history as the Glorious Revolution of 1688.[4] But there was more to this revolution than simply a change of king. In January and February 1689, Parliament drafted a Bill of Rights to which William and Mary were compelled to assent prior to their taking the oaths of coronation. This Bill of Rights, 1689, affirmed that all Catholics and those married to Catholics would be prohibited from ascending the throne. The bill, in homage to the Magna Carta, drastically limited the prerogative powers of the sovereign. From this moment on, sovereigns were forbidden to execute laws or raise any form of taxation without the express consent of Parliament. Moreover, they were forbidden to suspend laws duly passed by Parliament simply because they might disagree with them. The bill also stipulated that sovereigns were not to interfere with parliamentary elections or legal cases proceeding through the English courts. Sovereigns were specifically proscribed from initiating any form of arbitrary prosecution or from dismissing judges without due cause and without the prior approval of Parliament. The bill required that Parliament had to be summoned regularly while guaranteeing the freedom of speech of its members. Finally, the financing of sovereigns and their properties, court, servants, aides, and advisers was made largely subject to parliamentary scrutiny and approval through its control of what came to be known as the Civil List, the annual fiscal grants paid to sovereigns by Parliament for the former’s upkeep.[5]
The key constitutional events in the political life of England in the seventeenth century fundamentally changed the status of the Crown. The Civil War affirmed that Parliament, not the monarchy, was politically supreme in the land. There was no greater demonstration of this new reality than the execution of Charles I. The Glorious Revolution of 1688 and the Bill of Rights, 1689, were nearly as dramatic. They hammered home the ideas that the Crown existed to serve the country and its Parliament, not vice versa, and that the sovereign was obligated to obey the rule of law as proclaimed by Parliament. The Act of Settlement, 1701, offered further proof of parliamentary supremacy. In this law the principle of hereditary monarchy was made subject to the control and direction of Parliament, with Parliament deciding who could be in the line of succession (Protestants only, from the line of Hanover) and who could not (Catholics). A good example of this power is found in George I. When he ascended the throne, there were more than fifty descendants of Charles I who possessed better hereditary claims; George became king for the simple reason that Parliament wanted the members of his family, and no others, to be the royal family.[6]
The reign of the House of Hanover witnessed the gradual but inexorable transmutation of the Crown prerogative. As the eighteenth century evolved, so too did the principles and practices of responsible government in Britain. Through this formative period, real political authority increasingly flowed from the bottom up. This trend became even more pronounced as the eighteenth century made way for the nineteenth. In the decades leading up to the passage of the Great Reform Act, 1832, the prime minister had truly become the head of government due to his power to make and administer public policies, and his ability to command the confidence of the majority of members in the House of Commons. With effective governmental power progressively vested in the hands of the prime minister and his cabinet, the king increasingly came to act strictly as the symbolic head of state. When responsible government was combined with the broadening of voting rights to all adult males and females regardless of property or income status (the “extension of the franchise”) in the late nineteenth and early twentieth century, Britain, Canada, and most of the self-governing dominions came to fully be the liberal democratic constitutional monarchies that we know today.
From the near absolute power of the Crown of William the Conqueror, we have evolved to a Crown fully compatible and comfortable with democratic rule. In fact, the ability of the British monarchy, and the Crown in Canada, to accommodate itself to the growing forces of democratization and nationalism, of egalitarianism and modernization, has guaranteed the survival of this monarchy. If the Crown had not been able to evolve, it would have become extinct, as did so many European monarchies in the early twentieth century.
Despite this seismic shift in power, not all the Crown prerogatives once held by William the Conqueror and his medieval successors have disappeared. Power itself never ceases to exist. All the powers mentioned at the very outset of this chapter persist in one form or another in Britain and throughout the Commonwealth, but most of them have been transferred from the hands of the sovereign to other institutions or persons. Parliamentary assemblies have assumed the authority to make laws, oversee taxation, regulate the economy, and even control not only whether there will be a king or queen on the throne but also what the line of succession will look like. Likewise, parliaments have given the courts the responsibility to adjudicate all legal disputes, and interpret and apply the laws passed by parliamentary assemblies. Most of the previous Crown prerogative now resides, however, in the hands of first ministers who are the heads of government and, as such, have assumed most of the vast governing powers once held by the former kings and queens of England.
As the nineteenth and twentieth centuries unfolded, one further constitutional dynamic came to reduce the scope of Crown prerogative powers in Britain and her Commonwealth realms. This dynamic was the growing use of statutory law passed by parliaments, or legislative assemblies, to define, codify, and regulate the application of public policy and governmental powers with respect to any given field of state action. An appreciation of this dynamic is essential to understanding the current existence of the Crown’s powers.
From the mid-1800s onward, governments in Britain, Canada, and elsewhere in the Commonwealth began to increasingly base their public policies and program administration upon legislative statutes, acts of Parliament, or legislative assemblies. These acts — for example, a Criminal Code or a Workmen’s Compensation Act — would outline specific rights and duties, policy objectives, and program methods by which policy aims would be achieved. With the passage of these laws, each statute would take a field of policy and government decision-making that had previously existed as part of the Crown prerogative and give it to parliamentary assemblies.
These bodies — parliaments and legislative assemblies — assumed the power to make law with respect to these policy fields. Once such laws were duly made and passed by parliamentary authority, government departments exercising the executive powers of the Crown were empowered to enforce the law as written. The Crown thereby lost its former discretionary power rooted to its ancient prerogatives, and now had to abide by and enforce the legal structure set by the given parliamentary enactment. And there is more. Under British and Canadian constitutional law, once statutory law occupied the legal ground formerly held by any prerogative power, that transfer of authority was permanent.
As the scope and breadth of statutory law has increased in Britain and Canada over the past two centuries, so too has the extent of the Crown prerogative declined. The majority of laws found in Commonwealth countries today are based on statutes, meaning that the Crown prerogative, once so fearsome, is now but a pale shadow of what it used to be. The great policy-making powers once held by the likes of William the Conqueror, Henry VIII, and Elizabeth I have been overtaken and tamed by parliamentary authority and the power of statute law.
Elements of the former Crown prerogative, however, still exist in British, Canadian, and Commonwealth law because not all the policy fields of the ancient prerogative have been regulated by parliamentary actions. “Prerogative,” in the words of the great British constitutional historian A.V. Dicey, “is the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown.”[7] And this “residue” remains significant. To this day, the Crown-as-monarch retains the prerogative right to appoint persons to a wide array of senior governmental positions. In Canada, as we witnessed in the previous chapter, the Crown-as-monarch, in both its federal and provincial manifestation, has the right to appoint a wide variety of public officials from prime ministers, premiers, and all their cabinet ministers through to thousands of public servants, high and low. The Crown-as-monarch also possesses the prerogative power to grant royal assent to parliamentary legislation, prorogue parliamentary assemblies, dissolve such assemblies and call for new parliamentary elections, and even dismiss prime ministers, premiers, and their governments. The Crown-as-executive in Canada, as in Britain, also retains enormous freedom of action in the field of international relations. The Crown has the power to conduct foreign policy, issue passports, make treaties, declare war, oversee the conduct of military policy, and make peace.
In exercising these prerogative powers, Crown action is not governed and controlled by statutory authority for the simple reason that these fields of action are not governed by statute law. This does not mean, however, that the sovereign or her vice-regal representatives make these decisions on their own. Given the principles and practices of responsible government, most of these surviving elements of the Crown prerogative are made subject to the advice of first ministers who have the command of their parliamentary assemblies. As such, although all appointments to the senior ranks of Canadian governments are made in the name of the governor general or a lieutenant governor, the effective decision-maker is the prime minister or premier. Likewise, although Canadian foreign policy initiatives and treaty-making derive from the power vested in the governor general, the true powers behind the throne are those of the prime minister and his or her senior ministers. Similarly, while the governor general is the commander-in-chief of the Canadian military, real decision-making authority respecting the use of Canadian military forces rests with the prime minister and his or her cabinet. And even though the Queen retains the legal right to appoint the governor general, the exercise of this prerogative is subject to the controlling power of the Canadian prime minister.
So, what powers — beyond those listed above, which are rarely (or never) exercised without the advice of first ministers — are left to the sovereign and vice-regents? In a modern constitutional system founded upon the supremacy of parliamentary assemblies, the rule of law, and responsible government rooted to democratic elections and the will of the people, does the Queen have any real power?
The answer is yes. Although the Crown-as-monarch is often viewed as a mere figurehead, powerless and without authority, such a perception is mistaken. Since the advent of responsible government in the eighteenth and nineteenth centuries, the Crown-as-monarch has always possessed and maintains to this day two types of power: one hard, the other soft. Hard power refers to the ability to issue orders and directives that must be obeyed because the person issuing the order or directive has the legal power to do so. Hard power is about being in command of a situation and being able to authoritatively direct a desired course of action. Soft power, by contrast, is more about influence rather than legal capability; those exercising it invite others to rethink issues and options, to shape how they perceive reality or reconsider how they should utilize their own power to make decisions. Hard power is highly formal and direct, and clearly visible when it is exercised. Soft power is quite the opposite. It is informal and indirect, usually little seen, sometimes little felt. Often the object of the application of such power may never know that he or she has been influenced until after the event. The fact of hard power is immediate, like a lightning bolt; soft power, by contrast, is indeterminate, a process of becoming. The remaining hard powers of the Crown — the “reserve” powers to be utilized during extraordinary times of parliamentary crisis — will be the focus of the next chapter. Here, attention will be devoted to the much more common soft power.
This kinder and gentler Crown power was vividly articulated by Walter Bagehot in his 1867 study of the English constitution:
To state the matter shortly, the sovereign has, under a constitutional monarchy such as ours, three rights — the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others. He would find his having no others would enable him to use these with singular effect. He would say to his minister: “The responsibility of these measures is upon you. Whatever you think best must be done. Whatever you think best shall have my full and effectual support. But you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. I do not oppose, it is my duty not to oppose. But observe that I warn.” Supposing the king to be right, and to have what kings often have, the gift of effectual expression, he could not help moving his minister. He might not always turn his course, but he would always trouble his mind.[8]
Here, in a passage that has been especially studied by Elizabeth II and her father and grandfather when they were each teenagers, we find the quintessential statement of the type of influence and power that the sovereign and her vice-regents usually seek to exert if and when they are given the opportunity to express their opinions on matters of public policy to their first minister. As we’ll see in the next chapter, the Crown is rarely called upon to exercise the hard powers that it retains. Indeed, using them invariably entails so much controversy that the Queen and her governors live in the hope they never have to. The far more routine application of Crown influence comes through the ability to speak to his or her first minister one-on-one, in private, with the first minister absolutely assured that such conversations are guarded by the strictest sense of confidentiality. The first minister can speak his or her mind bluntly to the Crown representative, and, in turn, he or she can speak openly, incisively, and, if need be, critically to the first minister. While all governors possess such soft power, it is in Britain where this authority is most felt due to the presence of a hereditary monarch as head of state.
As of 2018, Elizabeth II has been on the throne for sixty-six years. During this time, she has known thirteen British prime ministers serving under her, beginning with Winston Churchill from 1952–55 and extending to Theresa May. It has been the Queen’s tradition throughout her reign that, as long as Parliament is in session, she and the prime minister will meet weekly to discuss affairs of state. This practice is not a simple ritual, as Harold Wilson learned the hard way. When he arrived at Buckingham Palace for his first audience with the Queen in 1964, expecting a general chat, he soon found himself facing detailed questions about British monetary policy and the balance of payments deficit. Wilson later wrote that he was embarrassed to have been “caught out,” and he advised his successor to “read all his telegrams and cabinet committee papers in time” so as not to “feel like an unprepared schoolboy.”[9] Edward Heath subsequently noted that the Queen could exert significant influence through an “exchange of views” with her prime ministers, but she would never tell one of them directly what they should or should not do.[10]
A royal message, however, could always be delivered to those who knew how to read the signals. As royal biographer Ben Pimlott has written of these policy discussions between the sovereign and her prime ministers, “[i]f she approved, she would say so, positively. Disapproval was indicated by a significant failure to comment.”[11] Margaret Thatcher also noted the importance the Queen gave to these meetings: “Anyone who imagines that they are a mere formality or confined to social niceties is quite wrong; they are quietly businesslike and Her Majesty brings to bear a formidable grasp of current issues and breadth of experience.”[12] In a rare glimpse of the Queen’s own thinking on the value of these meetings, Elizabeth II has said that her prime ministers can “unburden themselves” by speaking with her. “Occasionally,” she noted, “you can be able to put one’s point of view which, perhaps, they hadn’t seen it from that angle.… I think it’s rather nice to feel that one’s sort of a sponge and everyone can come and tell one things.”[13]
In assessing the Queen’s exercise of such “soft power,” English constitutionalist Vernon Bogdanor has written that Elizabeth II’s influence is very much related to her institutional memory, her deep knowledge of British politics and government throughout the twentieth and the early years of the twenty-first century, her access to privileged and top secret cabinet documents provided to her regularly in dispatch boxes, and her understanding of the country gained from extensive travel. She knows her realm just as she has known every major British political figure dating back to the early 1950s, and her own personal memory of politics and constitutional affairs stretches back to the abdication crisis involving her uncle, Edward VIII, in 1936. The longer the Queen’s reign, the greater is her experience and the more context, background information, and wisdom she can offer to a prime minister. Given her age, there is now no one in Britain who can boast a longer experience in public life. Through the process of “doing her boxes,” the Queen has become an expert in the contemporary history of the British government and its foreign diplomacy. Bogdanor has also noted that the Queen’s ability to influence the thinking of a prime minister is likely inversely related to the degree to which a matter of public policy is ideologically charged, but directly related to the extent to which a matter of public policy touches upon Commonwealth interests.[14]
This latter point is important as it addresses one of the Queen’s great interests in international affairs: the Commonwealth. Most British political commentators agree that on this subject, Elizabeth II is one of the foremost British experts. She is intimately acquainted with the Commonwealth’s history and purpose as well as its public policy initiatives in the fields of good governance and human rights promotion, social and economic development, environmental protection, and public education. She has a wealth of knowledge about its past and current worldwide leadership, and she is profoundly aware of its current political challenges. As head of the Commonwealth, Elizabeth II takes her role very seriously, and she has been instrumental on more than one occasion in shepherding the organization through turbulent times that might have resulted in the break-up of the Commonwealth without sound leadership.
Two notable meetings, one in Lusaka, Zambia, in 1979, the other in Nassau, Bahamas, in 1985, provide evidence of the Queen’s deft handling of her soft power. In the first instance, the great issue of the day revolved around what to do with Rhodesia/Zimbabwe, whether economic sanctions should be maintained upon the white Rhodesian government, and whether Commonwealth-sponsored democratic elections could be organized so as to give birth to an independent, black-majority-ruled Zimbabwe. While all Commonwealth members save one supported the continuation of sanctions in the lead-up to democratic elections establishing the state of Zimbabwe, the one holdout was the British government led by Margaret Thatcher. At the Commonwealth Heads of Government Meeting in Lusaka, the tension was palpable, with many African leaders threatening to leave the organization if Zimbabwean independence could not be affirmed. Enter the Queen, as head of the Commonwealth.
According to Sally Bedell Smith, another royal biographer, the Queen saw her role at this meeting as that of an active and sympathetic facilitator of discussions between leaders. Her goal was to see those leaders arrive at a consensus that would produce a peace plan for Zimbabwe while maintaining, and even enhancing, the integrity and purpose of the Commonwealth. Throughout the four days of this often heated conference, the Queen held private audiences with each of the participating heads of government. “In these sessions,” notes Bedell Smith, the Queen “conveyed sympathy for their position without explicitly stating her own, and they came away impressed by her knowledge of their problems. By bringing down the temperature, the Queen made it easier for Thatcher to move toward the Commonwealth position.”[15]
Six years later, at the Commonwealth Heads of Government Meeting in Nassau, the Commonwealth was again facing rupture over the issue of sanctions against the apartheid regime of South Africa, with the British government of Margaret Thatcher again being the odd player out. Canadian prime minister Brian Mulroney was the official Commonwealth chairperson for this meeting. He had been encouraged by the Queen to use his diplomatic skills to build support for an array of sanctions against South Africa that could also gain the support of the British government. While Mulroney was busy working the back rooms, searching for a compromise that could bridge the divide between the pro- and anti-sanctions camps, the Queen “dispelled tensions in her individual meetings with the leaders … emphasizing the ‘moral obligation’ to keep talking.”[16] This conference eventually resulted in a unanimously approved communiqué denouncing apartheid and calling upon member states to curb bank loans and trade missions to South Africa while exploring other sanctions that individual member states could take against the apartheid regime.
Brian Mulroney’s commentary on the Queen’s leadership during this event is instructive:
There was no doubt that Her Majesty sided with the Commonwealth. But she couldn’t speak out. You had to understand the nuances and body language. She did it by allusion and indirection. At the dinner she was a great moderating influence on everyone. She led us through an elevated discussion on human rights. I don’t know how much opinion she expressed but she would nudge everyone in a certain direction. What saved the day was that Margaret [Thatcher] was aware Her Majesty certainly wanted some kind of resolution. So we were able to put in three or four financial things that Margaret accepted, which allowed us to move on to the next meeting without rupture.[17]
This is a classic description of the subtlety and artistry of soft power, and the ability to direct the course of action through influence and moral suasion.
Elizabeth II has honed her ability to exercise soft power in the United Kingdom. She makes full use of her rights to be consulted, to encourage, and to warn. Every single one of her prime ministers has spoken about the benefits of their weekly audiences with the Queen. If the Queen has set the gold standard respecting the application of royal influence to ongoing actions of responsible ministers, then she has set a standard that is impossible for any of her vice-regents in any other Commonwealth realm to equal. No governor in any Commonwealth country can ever hope to wield the same type of soft power as can the Queen. Each has institutional and political limitations undercutting his or her prestige as a leader.
The most obvious and most important distinction separating the sovereign from her vice-regents in Canada is the simple fact that she is a monarch and they are not. The Queen, quite simply is The Queen, possessing all the stature and grandeur associated with the monarchy. The sovereign sits on a throne symbolizing over a thousand years of political and constitutional evolution. The British and Commonwealth sovereign is, by definition, a person with an international public persona and, for better or worse, a person who attracts enormous worldwide media interest. Most everybody in the world could identify a picture of Elizabeth II; hardly anybody outside of Canada would be able to identify a picture of any Canadian governor general or lieutenant governor. Even within this country, most Canadians would likely fail such a test. Every sovereign has the aura of nobility and royal tradition that flows from the institution of the British and Commonwealth monarchy. While vice-regents are part of that tradition, they are distant satellites to the Queen’s sun.
The politics of the appointment process have also served to weaken the stature and credibility of vice-regents in the eyes of many first ministers throughout Canadian history. The position of governor general was long held by British appointees, with the first Canadian not appointed to the role until 1952. From Confederation until 1926, the British government perceived the governor general to be not only the representative of the Crown in Canada but also the representative of the United Kingdom’s government in Canada, with instructions to advance British interests in this country. Given this dual role, it is not surprising that governors general appointed by the British government at time locked horns with their Canadian prime ministers, the latter of whom tended to believe that these vice-regents were ill-informed and meddling. Alexander Mackenzie, the first Liberal prime minister, believed that Governor General Frederick Hamilton-Temple-Blackwood, Lord Dufferin, was “treacherous” in his interventions respecting federal-provincial relations, while Robert Borden wearied of a string of complaints raised against his government’s military policies during the First World War by Governor General Prince Arthur, the Duke of Connaught.[18] As we will see in the next chapter, Prime Minister William Lyon Mackenzie King was infuriated by the actions of Governor General Julian Byng, going so far as to criticize him during the election of 1926 for promoting unconstitutional behaviour on behalf of the Conservative Party.
When Canadians began to be appointed to the position of governor general in 1952, the tension point shifted from the governor being British to he or she being an appointee of a prime minister and party no longer holding power. Prime ministers John Diefenbaker, Lester Pearson, Brian Mulroney, Jean Chrétien, and Stephen Harper, for example, all “inherited” governors general appointed by the political opponents they subsequently defeated in their quest for power. In a number of these cases, the new prime minister found himself dealing with a governor general who had clear partisan connections to the former government. In 1984, Conservative Brian Mulroney came to serve under Governor General Jeanne Sauvé, a former cabinet minister in the Trudeau Liberal government. Likewise, Liberal Jean Chrétien was sworn into office in 1993 by Governor General Ray Hnatyshyn, a former cabinet minister in the Mulroney government. In somewhat different circumstances in 2006, Conservative Stephen Harper entered office under Governor General Michaëlle Jean, a well-known journalist who had been appointed by Liberal prime minister Paul Martin.
All these circumstances of appointment have tended to obstruct prime ministers from developing close relationships with their vice-regents. The latter have often been viewed by their political masters as either “British” appointees or “partisan” appointees of an old and discredited party, at least in the eyes of the new prime minister. The limited term in office of any one governor general also inhibited the ability of the vice-regent to develop a lasting and mutually respectful relationship with the prime minister. There never developed in Canada the tradition of the prime minister meeting weekly with the governor general to discuss affairs of state. As political scientist MacGregor Dawson explained, Canadian prime ministers, in contrast to the British practice, had historically distrusted “the mediocre talents of certain Governors” and “the old functions of the Governor as Imperial Officer.”[19] Although more recent prime ministers have never spoken ill of any governor general, it remains true that prime ministers in Canada have nowhere near the formalized consultative relationship found between the Queen and her prime ministers in Britain. It is not hard to imagine that Mulroney would have looked somewhat sceptically upon Madame Sauvé, or that Chrétien would have been less than desirous of sharing his thoughts with Mr. Hnatyshyn. And, although this thought is purely speculative, it is highly unlikely that Stephen Harper ever wanted to hear Madame Jean’s opinions regarding his public policy objectives.
But this is not to say that prime ministers and their governors general have never had occasions to discuss matters of state in such a manner that the prime minister could speak confidentially to the vice-regent, and he or she could offer advice, encouragement, or warnings in return. Prime ministers as diverse as Wilfrid Laurier, Robert Borden, William Lyon Mackenzie King, Louis St. Laurent, Lester Pearson, and Pierre Trudeau, at one time or another, all spoke highly of the opportunities they had to confidentially discuss difficult matters of public policy with their governors general. “The Canadian Governor General,” Laurier said, “long ago ceased to determine policy, but he is by no means, or need not be, the mere figure-head the public imagine. He has the privilege of advising his advisers, and if he is a man of sense and experience, his advice is often taken.”[20]
In a similar vein, Pierre Trudeau spoke of the warm relationship he had with Governor General Roland Michener: “I recall with personal gratitude the many Wednesday nights since 1968 when you have offered me your encouragement and counsel on the nation’s business. I can testify that you are a man who knows, better than most.”[21] Such meetings with the vice-regent are, of course, strictly private and personal, with the prime minister assured that nothing said in these meetings will ever become public. In a breach of protocol, likely done with the prime minister’s consent, Adrienne Clarkson has publicized a significant exchange between Prime Minister Chrétien and herself. When she was governor general, Chrétien notified her in advance of his decision not to commit Canadian troops to the American-led invasion of Iraq in 2003. As she expresses in her autobiography: “[H]e told me before he was to announce it in the House and I encouraged him. The Governor General is commander-in-chief of the Armed Forces — one of the most precious of the vice-regal duties — and he knew it was important that I know his decision before he rose in the House to announce it.”[22]
The relationship between Canadian prime ministers and their governors general does not come close in its profundity to that of the Queen and her British prime ministers. However, the bond is even weaker for provincial lieutenant governors. As early as 1934, Governor General Vere Ponsonby, Earl Bessborough, expressed his thoughts on the matter to George V:
In several provinces there is public talk of doing away with the Lieutenant Governors as an economy. Personally I see little use in having nine Lieutenant Governors as well as a Governor General. They have no personal contact with Your Majesty whatsoever. Though most respectable and patriotic men, they have no training, no background, and are too well-known locally to be able to impress themselves on the population as being really personal representatives of the Crown.[23]
Nothing came of Earl Bessborough’s complaint about his provincial vice-regal counterparts. To eliminate the positions of the lieutenant governors would have meant amending the British North America Act, 1867. However, his going right to the king reveals some of the deep problems facing lieutenant governors. Just as many governors general suffered from the perception, held by prime ministers and their confidants, that they were either too British or too closely tied to the former government, lieutenant governors have always struggled with the fact that they are formally appointed to their provincial office by order of the governor in council, subject to the advice of the prime minister. This reality has never been lost on provincial premiers. Nor has the understanding that many provincial vice-regal appointees historically were men with pronounced political affiliations to the federal government that appointed them. All too often, prime ministers have treated the opportunity to appoint a lieutenant governor as a time to indulge in partisan patronage, rewarding former loyal politicians — senators, members of Parliament, members of the provincial legislature — with plum sinecures, regardless of their ability to impartially represent the provincial head of state.
Factor in the additional reality that Canadians have long demonstrated a tendency to counterbalance the party in power federally with other parties provincially. In this practice lies an excellent recipe for frosty relations between a lieutenant governor and his or her premier. Much of the history of Canadian federal-provincial relations is of the party in power in Ottawa facing concerted opposition from most of the country’s premiers, with many of these premiers representing parties and ideological viewpoints contrary to that of the current federal government. As premiers came to see battling Ottawa as a vital part of their role, it is not surprising that many of these leaders came to treat their lieutenant governors as merely ceremonial figures, required to read the speech from the throne, give royal assent to provincial legislation, and engage in charitable work, but generally not to be consulted respecting the development of public policy. “The decline in the influence of the Lieutenant Governor … need not have been so rapid and so complete,” political scientist John Saywell argued in 1957, “if one elementary maxim had been learned and scrupulously followed: the monarch may be politically biased but must be politically neutral.… To confide in the Lieutenant-Governor was too often like giving secrets to the enemy.… [H]e was never beyond suspicion.… [W]hile normal constitutional development reduced the Lieutenant-Governor’s power, political partiality destroyed his influence.”[24]
Just as in London and Ottawa, when provincial first ministers do meet with the Queen’s representative, the details are strictly confidential. As Christopher McCreery, private secretary to the lieutenant governor of Nova Scotia, has outlined, these meetings are “all in camera, rarely with a formal agenda prepared, no minutes of meetings, and no staff present.” The purpose of these sessions is to allow the two principals to freely discuss matters of public importance. The premier is placed in the position to gain any wisdom or insight he or she may wish from the vice-regent. “We are not privy to the actual details of the discussions,” writes McCreery, “nor would it be advisable for such things to be made public until years after. But it would be difficult to justify taking an hour or two out of the very active schedule of the premier and the Lieutenant Governor if the discussions were limited to the weather and the next NHL draft.”[25]
McCreery is likely overplaying the significance of these meetings. If most premiers really found the meetings invaluable, we would see more of them across all provinces. Only in British Columbia, Nova Scotia, and Prince Edward Island are such meetings a regular occurrence. We have perhaps seen a little, but telling, glimpse of such discussions coming from former Newfoundland and Labrador lieutenant governor John Crosbie. In speaking with journalist John Fraser, the only complaint Crosbie voiced about his job was with respect to the “studied inability” (Fraser’s words) of his premier, Conservative Danny Williams, to understand that the lieutenant governor has the right “to be consulted, to warn, and to encourage.” “Danny,” said Crosbie, “only likes the encourage part.”[26]
Since the sovereign’s chief role is to act as head of state, most of the Queen’s duties and those of her vice-regents are ceremonial, educational, promotional, charitable — and always non-partisan. The Crown-as-monarch is called upon to represent all that is good about the country or province and to encourage people to be both better citizens and better persons. If and when the sovereign or a vice-regent is called upon to exercise one of the existing Crown prerogatives, he or she will usually do so subject to the guiding advice of a first minister, in keeping with the traditions of responsible government. But this is not always the case.
The logic of parliamentary government necessitates that some components of the Crown prerogative must be personally retained by the sovereign and her vice-regal representatives. These elements are the reserve powers of the Crown: powers subject to the sole discretion of the Crown-as-monarch that can be exercised without the advice of a first minister. The implementation of these powers is extremely rare and hugely controversial. During these times of extraordinary circumstances in Canada, the governor general or lieutenant governors may be called upon to break parliamentary deadlocks, prorogue or dissolve parliaments, dismiss a first minister and appoint another one in his or her place, or order the holding of new elections. In making these exceptional and historic decisions, the vice-regents are expected to exercise these powers in such a fashion as to ensure the continued functioning of responsible government and parliamentary rule. And yet, they use individual discretion and judgment; they are not obligated to obey the advice/orders of any first minister. In short, in these cases and during these times, the representatives of the Crown can exercise real political power in dramatic fashion. It is to these dramas about “hard power” that we turn to next.