Are Royal Assent, Pardons And Prorogation Fact Or Legal Fiction

Elizabeth II is the Head of State of the United Kingdom and fifteen other member states of the Commonwealth of Nations. These countries are constitutional monarchies, meaning that they operate under an essentially democratic constitution, the Queens principal role being to represent the state. Very often, she is viewed as a symbolic and apolitical personage with no real power. But is this entirely true? Does the Queen really possess purely nominal authority, or can she in fact exercise her will in any public action? This is not an easy question to answer. I will attempt to do so by focusing mainly on one of her most important theoretical prerogatives: the right to grant or deny royal assent to laws passed by Parliament.

A difficulty in judging the extent of the authority presently held by the monarchy lies in the fact that the British constitution has not been codified into one single document and much of it remains unwritten. The extensive power that the monarch once indisputably possessed, including the right to administer justice, dissolve Parliament or pardon crimes, was largely a matter of common law and not statute. What laws were codified (the Bill of Rights of 1689 and the Act of Settlement of 1701 standing among the most important) served more to restrict the Monarchs power than to entrench it. Thus, the residual powers still reserved to the Queen continue to be more a matter of constitutional convention than of written rules. Formally, no Act of the British Parliament becomes a proper law until it is given assent by the Queen. Yet in practice, Elizabeth II assents to all bills, irrespective of her opinion on them. The last time a British monarch rejected a law was in 1708, when Queen Anne vetoed the Scottish Militia Bill, and even then, she did so at the request of her ministers. Since then, the right of royal assent has fallen into disuse, leading some constitutional theorists to claim that a new convention obligating the monarch to assent to all bills has arisen. This view was famously stressed by Walter Bagehot in his 1867 volume The English Constitution:

…the Queen has no such veto. She must sign her own death-warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power. She has long ceased to have any.

In earlier generations, such a bold assertion of the monarchs supposed lack of power would have been unpardonable. Even I see some flaws in this theory. For one thing, the only evidence on which it stands (besides Bagehots claim) is custom. Even if all the monarchs since Queen Anne have assented to all bills presented to them, there is no formal change in any official policy that would indicate that the practice will be followed for the next bill. Additionally, if the Queen decided to withhold assent to a bill, what legal mechanism could force her to do otherwise? It would seem to me that in such an event, the veto could only be effectively circumvented by some kind of revolutionary act – as a minimum, by the Government refusing to respect the veto, which would undoubtedly lead to a constitutional crisis.

The situation is more clear-cut in Canada, which, unlike the United Kingdom, has a constitution that is largely written. The Constitution Act, 1867 clearly delineates the powers of the Crown. According to Section 55 of the Act, when the Governor General (the Queens representative in Canada) is presented with a bill that has been passed by Parliament, he may declare that he assents to it in the Queens name, that he withholds his assent, or that he reserves the bill for the signification of the Queens pleasure (letting the Queen decide the matter; according to Section 57, she may do so within two years after the Governor General receives the bill). Furthermore, as per Section 56, the Queen in Council (the Queen acting on the advice of her Privy Council) may disallow a law assented to by the Governor General within two years after receiving a copy of the law. Therefore, the Queen, together with the Governor General, does have the formal authority to veto a law passed by the Canadian Parliament. Nevertheless, no Governor General has done this since Confederation in 1867, although some provincial Lieutenant Governors have vetoed provincial laws or reserved them to the pleasure of the Governor General (under the authority of Section 90 of the Constitution Act, 1867). This happened most recently in 1963 when Saskatchewans Lieutenant Governor Frank Bastedo reserved a bill.

On top of that, there are instances in recent Commonwealth history of other royal prerogatives being directly exercised by the Crown against a governments wishes. Depending on the country, the crown may have extensive official powers, including the appointment of ministers, granting of pardons for eliminating criminal records, or calling an early election, and some of these have been exercised in person, especially during unclear political situations. A classic example is Governor General Byngs 1926 refusal to call a very early election at the request of Canadian Liberal Prime Minister William Lyon Mackenzie King, who wished to remain in power despite the stronger footing of the Conservative party in Parliament. Byng refused to do so; King was incensed by this supposed infringement on democracy, but Byng stood his ground. Another famous example was the dismissal of Prime Minister Gough Whitlam by Australian Governor General John Kerr during the 1975 Australian constitutional crisis. Whitlams controversial government did not have control of both houses of Parliament and he petitioned Kerr to call a half-senate election. Instead, Kerr dismissed him and appointed Malcolm Fraser, the leader of the Opposition, in his place.

The fact that the royal prerogative is rarely exercised, if at all, by the Queen and her representatives, appears to be more the product of a conventional good will on their part than an actual legal requirement. I hope Bagehot would pardon me if I surmised that he overdid it when he claimed that the Queen must sign her own death-warrant; what he was speaking about was more a matter of everyday practice as he saw it than a real summary of the standing law. After all, the monarchy seeks to stay popular and in todays age of democracy, its very existence depends on public approval.

A Criminal Defence Lawyer Explains How To Get Your Charges Withdrawn Or Stayed

If you have been charged with a criminal offence in Canada, you may be wondering what the options are for getting rid of your charges. Obviously, you can make a plea or have a trial. However, in some cases, there are other options such as having your charges withdrawn by the crown attorney or stayed. This article explains what those two terms mean.

When can the crown withdraw a charge?

The crown attorney has the right to withdraw any criminal charge before an accused person enters a plea in open court.

If you have already entered a plea, the crown attorney can still withdraw a charge, but the court must also agree that withdrawing the charge is appropriate.

If the crown tries to relay the charge after the charge has been withdrawn, the court may intervene to ensure there is no abuse of process.

Any attempt to relay a criminal charge after a withdrawal by the crown attorney should be discussed with your defence lawyer because any decision by the crown to prosecute after a charge was withdrawn may require a legal application to be brought before the court.

What about a stay of the charges? The crown attorney may also stay the proceedings as of right at any time before a final judgment is rendered. A stay of proceedings stops the prosecution proceedings immediately. The court has no power to intervene to require the continuation of the prosecution. Once a stay of proceedings is entered, the accused can also automatically be released from detention.

A stay of proceedings is an excellent outcome for the accused person. However the crown does have the power to recommence the prosecution after a stay of proceedings has been entered. This is why you should discuss with your criminal defence lawyer whether or not it is possible to obtain a withdrawal of charges rather than a stay of proceedings.

Sometimes, an experienced defence lawyer can persuade the crown to agree to withdraw the charges rather than entering a stay of proceedings.

How is either a stay or a withdrawal achieved? In many cases, these excellent outomes ocur because your criminal defence lawyer has negotiated with the crown attorney. Under Canadian law, the Crown must not proceed with the case if there is “no reasonable prosect” succeeding at trial. In the right case, an experienced criminal defence lawyer can demonstrate to the crown attorney that the crown’s case is doomed and should not continue.

Canadian Immigration News Backlog

More than 300 people, a number that only continues to grow, around the world, who are awaiting immigration visas, have filed legal notices against the Federal Court of Canada as they wait in a lengthy Canadian immigration backlog, some since 2004. It is important to note that this is not a class-action lawsuit. Thus, a court ruling would apply only to those involved in the litigation. This means, from a backlog of 900 000 applications, only 300 of them have access to a court ruling.
There were a great deal of Canadian immigration applications that were filed between 2008 and 2010, and even before February 2008, when new laws were brought in to fast-track new applications from skilled workers. However, there were also new laws that capped the number of skilled-worker applications. The skilled-worker backlog was reduced from 641,000 people to 314,000, with 140,000 applicants from the early phase of the program who are still waiting for a decision. Some applications have been in progress for as long as 26 months.
This is not the first time: the federal government has been faced with a legal situation due to backlogging and challenges by the court to new regulations from 2002 to 2003. In response, Ottawa offered a $2.9 million settlement to 105,000 backlogged applicants, agreeing to get rid of the new rule that affected pre-existing applications negatively
For more information, contact FWCanada Canadian Immigration Law Firm
About FWCanada:
As one of the most trusted Canadian immigration law firms, FWCanada will ensure that your application receives impeccable attention to detail. Our mission is to provide high quality legal services, in a transparent and efficient manner. Unfortunately, fraudulent and ineffective practice exists in most industries and Canadian immigration is no exception. Only lawyers who are members in good standing of a Canadian bar association, or members of the Canadian Society of Immigration Consultants are legally authorized to represent clients for the purposes of Canadian immigration. As the legal representative of all FWCanada clients, Attorney Marisa Feil has distinguished herself as a respected authority on Canadian immigration law. She is frequently contacted by government officials and other Canadian immigration lawyers for her expertise.
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