Scots aren’t the only ones in constitutional knots

Barbados became independent in 1966 but took another 40 years of painstaking constitutional work to finally and completely jump ship. Now Jamaica has embarked on the same patient path of constitutional unpicking. And the Prime Minister of the Bahamas – directly after signing the Queen’s book of condolences – declared his intention to hold a referendum on turning his nation into a republic as well.

So, are the Aussies and the other Commonwealth realms about to make the final break with Blighty and declare themselves republics? Or are they finding that removing the British monarch is easier said than done, because that act generally requires other acts of overdue constitutional spring-cleaning to be undertaken first?

Australia, for example, is about to hold a referendum – not on becoming a republic but on indigenous rights. The Labor government of Prime Minister Anthony Albanese is committed to a referendum, recognising indigenous people in the constitution, enshrine their voice in parliament and requiring consultation on decisions that affect their lives. A referendum is needed to change Australia’s constitution and The Voice proposal was a pledge in Labor’s manifesto for the May election when it ended almost a decade of conservative Liberal-National coalition government.

Australia's constitution doesn’t refer to the country's indigenous people, despite generations of protests by first nations people. A successful referendum would bring Australia in line with Canada, New Zealand and the United States in formally recognising these groups and might be held on 27 May, 2023 – the 56th anniversary of the referendum that first allowed Commonwealth countries to legislate for indigenous people and count them in the census.

What has that to do with the Aussies becoming a Republic?

Well, that campaign probably won’t happen if The Voice referendum is unsuccessful. Yet if it does go ahead, Australians might feel referendumed out. Who can say?

Meanwhile, Jamaica will have to comprehensively review its original 1962 constitution, analysing charters that relate to fundamental rights and freedoms - not just electing a new head of state. It’s already created a new Ministry for Legal and Constitutional Affairs to take on the difficult task.

But when the work is finished, Jamaica must hold a referendum, scheduled for 2025, with at least a two-thirds majority in favour – just another of the hurdles baked into the country’s original constitution. Legal experts suggest there could be other unpopular changes to the Jamaican constitution which could encourage political opponents’ attempt to further their own agendas. Some, like political analyst Peter Wickam, say a Jamaican republic “will never happen because the referendum will be manipulated by political parties”.

Canadian public opinion is also drifting away from the British monarchy. Polling in 2022 showed 51 percent of Canadians want a republic and 77 percent feel no attachment to the British monarchy. But removing the Crown in Canada would require the approval of several legislatures and a massive constitutional overhaul. Additionally, most treaties with indigenous peoples were signed with the British Crown, not the Canadian government. As observer Jonathan Malloy puts it, “Canada went down this road in the 80s and 90s and the country nearly collapsed amidst all the competing demands.”

Other failed republic referendums include Australia in 1999, the Bahamas in 2002 and 2016, St Vincent and the Grenadines in 2009, Grenada in 2016 and 2018, plus Antigua and Barbuda in 2018. These bids for total independence all shared the same basic problems: the prospect of massive constitutional upheaval and the fear that unscrupulous politicians might exploit unrest.

Still, if tiny Jamaica does the constitutional legwork to remove the British monarch as head of state, its doggedness could re-ignite the debate in larger democracies. Especially if the Royal Family embarks on another charm offensive like the one that backfired so badly earlier this year. The relatively young and modern Prince and Princess of Wales were widely perceived to be the Windsor’s best emissaries, but Wills and Kate’s 2022 Caribbean tour went down like a lead balloon.

Can King Charles turn this all around? Whatever the consensus on his first Christmas address, and whatever the inclusion and relative modesty in his coronation next year, it probably isn’t up to him. If an individual could save the day for deference to distant monarchs, Queen Elizabeth would doubtless have managed. Yet quietly, amongst the former sugar and slave plantations of the British Empire, efforts to remove her as head of state were quietly progressing throughout her long and apparently friction-free reign.

The status quo isn’t acceptable but leaving isn’t easy. According, to one American constitutional writer, “Commonwealth realms face incredible challenges to leave the British monarchy. [That] is not mainly the result of current actions by the British monarchy, [but] structures of governance, directly attributed to the British Empire which still have deep ramifications for former colonies.”

So, it’s not just Scots battling an unwritten constitution which gives “the world’s most powerfully devolved parliament” no lawful route to an advisory referendum, lest that disturbs parliamentary sovereignty – the old compromise between monarchy and democracy upon which Westminster relies.

Still, the prize for battling through the constitutional minefield is impressive. According to Prime Minister Mia Amor Mottley, her nation’s laws are no longer signed off by people neither born in Barbados, nor living there, or able to appreciate the daily realities of its citizens. And that has resonance far beyond Caribbean shores.