Can Pro-life Monarchs Veto Pro-Abortion Laws?

'Many who are not familiar with monarchy believe a monarch can easily create or dispense laws. This is not the case for modern monarchies.'

From Crisis

By the Hon. Joseph Shaw, DPhil (Oxon), FRSA, Chairman of the Latin Mass Society of England and Wales and President of Fœderatio Internationalis Una Voce

Many who are not familiar with monarchy believe a monarch can easily create or dispense laws. This is not the case for modern monarchies.

Jonathan Van Maren’s European Conservative article, “Europe’s Pro-life Royals,” raises once again the question of Catholic monarchs and the legalization of abortion. 

Van Maren helpfully provides some detail on how King Baudouin of Belgium avoided signing Belgium’s 1990 abortion law, and how Prince Alois of Liechtenstein defeated abortion in Liechtenstein. The courage and determination of these monarchs are an example to us all, and particularly to Catholic statesmen tempted to compromise in their defense of the most vulnerable in society.

They followed quite different strategies, because of the quite different political and constitutional circumstances in which they found themselves. Before we criticize any heads of state for acting as they did, we need to be clear what strategies we think were available in their cases.

There is no equivalent in the U.K. Constitution to the clause that allowed King Baudouin to abdicate for 36 hours. However, Van Maren suggests that U.K.’s Queen Elizabeth II could have refused to grant “Royal Assent” to the 1967 Abortion Act, at the cost, he believes, of a “constitutional crisis.” The problem is that withholding Royal Assent is not something a British monarch can, in normal circumstances, do. 

Unlike with some heads of state, it is not necessary for the British monarch to sign a piece of paper to validate the passing of an Act of Parliament. The so-called Royal Assent is a declaration, made by a parliamentary official at the request of a government minister, simply that a Bill has already passed the necessary procedural hurdles and must therefore be considered the law of the land. 

As my colleague James Bogle recounts in a book I edited on this subject, President Mitterrand once compared the equivalent function of the French head of state to the act of notary. 

Royal Assent has of course evolved over the centuries. Before the English Revolution of 1688 it was indeed a power to veto legislation. Afterwards, for a short time the government would occasionally “advise”—that is to say, instruct—a monarch to withhold assent. 

This is a dangerous prerogative for a government to have in a Parliamentary system, where the right to govern flows out of the balance of power among members of the legislature; it was last used in 1708. Having just passed a law to establish a militia in Scotland, a Jacobite invasion panic suddenly made that idea seem unwise, since it was thought that a Scottish militia might side with them. The very government that had sponsored the Bill now had to reverse course, and the quickest way to do so was to employ withholding Royal Assent. 

It is not generally thought that U.K. governments can do this today, and certainly not against the will of Parliament. What is still possible, according to constitutional experts, is for the monarch to refuse assent to a bill that would suspend the operation of democracy. What mechanism the monarch would use to signal a refusal of consent in this case is not laid out: in such a case he would be in uncharted waters. 

But leaving that improbable contingency aside, the possibility of a monarch on his own initiative attempting to veto a law which is (on his view) simply unjust is absent from the British constitution. So, the problem is not that pulling this lever would cause a constitutional crisis. The problem is that there is no such lever for the monarch to pull. 

An attempt by a monarch to use a veto which he does not have would be not just illegal: it would be an attempt to overthrow the constitution. I assume that Van Maren is not seriously proposing such a course of action.

An objector might respond that the mere presence of the monarch at the apex of the state when such a law is passed is enough to tar him by association, and that abdication, or at least strenuous public protest, is morally necessary. I don’t think the people who make this argument have thought through its implications. 

One indication of this is that few seem to apply the argument consistently, to elected as well as to hereditary heads of state. All heads of state who lack a total power of veto may find themselves presiding over the passing of legislation they find morally objectionable, and over the course of history many have done so. 

But just as no well-informed person would blame U.S. President Gerald Ford for the twelve pieces of legislation that were passed despite his veto, no well-informed person should blame Queen Elizabeth II for the Abortion Act, precisely because she had no veto, and her role forbade public political statements.

It is true that President Ford could, and no doubt did, make public statements against these laws, and Queen Elizabeth did not. But again, she should not be blamed for what she cannot do. This is not so very odd: restrictions on overtly political speech commonly apply to serving judges, civil servants, members of the armed forces, and the Speakers of legislative bodies. 

Many constitutions make these restrictions because it is felt to be beneficial if these categories of people are regarded as politically neutral: and yes, this is a delicately maintained fiction, not a personal psychological reality. They represent the machinery of the state, and it is not a good thing for voters to feel that the machinery of the state is a participant in politics rather than its servant. 

In this context, different constitutions place the head of state on the political side of the equation or on the non-political side. A political head of state has its advantages, in theory, but so does a non-political one. Non-political non-executive heads of modern republics often struggle to realise these advantages fully, because as (usually) retired politicians they cannot entirely escape the taint of party politics. Hereditary monarchs, on the other hand, are ideally placed to reap them. In a word, a non-political head of state has an enhanced ability to represent his nation abroad and act as a centre for loyalty at home. 

Contrary to those who think it is outrageous that Queen Elizabeth II was unable to protest the Abortion Act, it is not an evil thing to take on a non-political role, and thereby lose one’s public political voice; it is a hugely valuable service to one’s country.

Legalized abortion can be blamed on political elites, but not on them alone. The Catholic hierarchy often failed to oppose abortion as they should. Catholic priests often failed to refuse Holy Communion to politicians openly supportive of the industrialised murder of the innocent, and Catholic voters have often failed to make it clear that such support would cost those politicians votes. In the context of such a large and varied cast of people who pushed and facilitated abortion or shrugged their shoulders at it, Van Maren has chosen to focus on the one person constitutionally unable to act: the British monarch. This seems to me a misdirection of energy—energy that should be focused on where it can make a difference.