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Sample Chapters:

Author's Preface Servants of the Crown Executive Lawlessness Illegality Epilogue Links



Excerpts from the Manuscript.

The sample chapters on this website have been taken from the final manuscript draft. Due to minor editorial changes and different copyright regimes on electronic and print media, the images and text here may vary slightly from that in the published work. The explanatory notes will also be a bit different, as these are added as they appear needed. 

For a quick background to the history of this book, see the Author's Preface.


Choice of Excerpts:

Many issues arising from the republican debate have been badly neglected in the media's reporting: the nature of the reserve powers of the Crown, the necessity of such powers in a parliamentary democracy (be it republic or monarchy), the way the appointment of their wielder fundamentally alters their use or misuse; the capacity of Buckingham Palace to act as an intermediary within and behind the scenes of conflicting realms; the role of shared symbols and institutions among countries in dampening destructive nationalism. Yet perhaps the most important topic neglected is the Crown's role in preserving the day-to-day liberty of citizens: the meaning of the phrase "Her Majesty's Prison", the implications of the emblem of the Crown on military and police uniforms, the way 17th Century political doctrines hold application in modern unlawful orders in the chain of command. This matter was considered crucial in the first half of the 20th Century, particularly during the Great Depression, and appears in the writings of Professor Dicey, Lord Hewart (the Lord Chief Justice of England in 1929), Sir Ivor Jennings LLD and Brigadier Sir Victor Windeyer (a Justice of the High Court of Australia after World War II).

Yet it appears to have died out in ordinary legal texts in the 1950s, and many lawyers now appear entirely innocent of this body of political, historical and legal precedent. (The only practising ones the author has spoken to who have referred to it have been military lawyers and Judges Advocate, as this body of precedent remains dominant in the military legal context.) But awareness of these arguments is critical to any citizens who value their personal liberty and the rule of law, particularly in this era of economic rationalism and privatisation of many of the former instruments of government.

These legal principles operate in a completely different manner to US-style declarations of "fundamental rights": they constrain the Executive's source of authority, rather than the way that authority is imposed upon the citizenry. Consequently, the Crown can provide effective constraints under conditions where judicial interpretations of rights may not be effective (and vice versa).

Of course, a country need not be forced into an exclusive choice between the Crown or declarations of rights: Canada, for instance, has both.    

Hence the following articles are reproduced from the chapter Her Majesty's Government:

(Outlining the Westminster history and modern legal implications surrounding the term "servants of the Crown" or "Her Majesty's servants" as defined in the courts, especially disobediance of unlawful orders. The result is a higher level of accountability than that of equivalent hierarchies in the US or France. Discussion of relevance to emblems, such as the Crown on uniforms of the coercive instruments of State -- the police, armed forces and other services wielding coercive power, such as the fire brigade and prison wardens.)

 

(Outlining what happens in even a common-law republic with strong democratic traditions, such as the United States, in the absence of these historical safeguards: Tea Pot Dome, Watergate and Iran-Contra. Testimony before and assessments by the Congressional committees of inquiry, and the verdict of the American Civil Liberties Union.)

 

(When gross illegality occurs within the Westminster system, what safeguards are there different to those of the US or European republics? One of the core problems with the US Constitution identified by the American Civil Liberties Union after Watergate, was that there was nobody within the Executive to whom a "lower-echelon official with a troubled conscience" could turn, as all members of the Executive were tainted by a shared self interest in the survival of the Administration, so executive safeguards were all inherently ineffective. This problem of course still persists.

An interesting comparison exists with the Crown in the Westminster system. As was starkly demonstrated in New South Wales in 1932, the Queen's representative is a potent observer of executive government by democratically elected politicians. Although such viceregal representatives are usually publicly quiescent, in the event of an extreme crisis such as gross lawlessness they can act to force that crisis to the floor of the elected lower House of Parliament, or to the voting public, to resolve. If the conventions of ministerial accountability are properly understood, this should be seen as a support to democratic parliamentary government. In the modern era, with discussions of appropriate whistle-blowing mechanisms for civil servants, this is a long-neglected safeguard: it enables a "lower-echelon official with a troubled conscience" to alert someone within the Executive whose interests are distinct from the Prime Minister's or electoral popularity, without violating the Official Secrets Act.)   



Author's Notes:
During the republican debate I became frustrated by the level of ignorance of key issues displayed by the media (and indeed by a number of law lecturers). 

Precisely at a time when the general public is concerned about safeguards on executive power and accountability, an entire body of Executive safeguardsó the Crown and its warning emblemsó has become neglected and unfashionable.

The presence of the Crown and its safeguards was discussed during the Depression by the leading legal scholars of the time, and appears to have been a significant reason why the Westminster democracies of the UK and "Dominions" did not collapse into autocracy during that emergency the way the European democracies did. (Remember that France, for example, had collapsed into self-imposed autocracy two years before the Nazis marched into Paris).

In this current era of the "War against Terror", when enormous power is voted to the servants of the Executive to protect national security, these safeguards should once again be a topic of public knowledge and debate, especially when some members of the public and media seem determined to dismantle them completely in the name of "modernising".
 



Further background reading:

Greenwood, N.J.C, For the Sovereignty of the People (Australian Academic Press, 1999);

The following books may also be of interest (see Sovereignty's bibliography for a full listing):

Dicey, A.V., An Introduction to the Study of the Law of the Constitution (10th ed.), Macmillan, London 1959;

Hewart, 1st Viscount (Hewart, G.), The New Despotism, Ernest Benn, London 1929;

Jennings, W.I., Cabinet Government, Cambridge University Press, London 1936;

Jennings, W.I., The Law and the Constitution (3rd ed.), University of London Press, 1943.

Windeyer, W.J.V, Lectures on Legal History (2nd ed.) Law Book Company of Australasia, Australia 1949.