13th February 2021
This week the Guardian has run a sequence of pieces about the right of the Queen and the Prince of Wales in respect of proposed legislation that affects their private interests.
Such a right is, as this blog averred, unacceptable and should be abolished (and indeed could be easily abolished without even an act of parliament).
But even mentioning this particular wrong triggered the usual broader reaction: ‘Let’s abolish the monarchy while we are at it’.
And so a particular point becomes the most general of demands, and in the end – as always – nothing will be done about either of them.
It is similar to what happens with any attempt to highlight or expose a constitutional wrong by the government.
There such an exposure or highlight triggers the general demand for a written (that is, codified) constitution.
And again, nothing ends up being done to address, still less remedy, the specific problem.
(I have set out in this provocatively titled Prospect column, why we should stop talking about about a written constitution.)
These general reactions are not so much ways of thinking about constitutional issues but a way of not thinking about them.
You hear or read of a problem, type out your demand in a tweet or other comment, bit ‘enter’ and gain a ‘like’ or even a retweet, and: job done!
But the job is not done.
In fact, nothing gets done.
And the constitutional abuses carry on as before.
Of course, there is a strong if not compelling case – in principle – for republicanism in any mature polity.
Strange women lying in ponds distributing swords is no basis for a system of government.
Supreme executive power should derive from a mandate from the masses, and not from some farcical aquatic ceremony.
Against the strong if not compelling case for republicanism as a matter of principle, however, there is a plausible case as a matter of practice for the monarchy in the instance of the United Kingdom.
This practical argument is not so much about what powers the Crown has – but what powers it prevents others from having.
In particular, the office of prime minister has few direct and express powers (and indeed there are relatively few mentions of ‘prime minister’ in statute or case law), meaning that almost all exercises of prime ministerial power are negotiated and are thereby contestable.
Even the convention that Crown will do whatever the prime minister ‘advises’ was shown to be open to challenge by the supreme court of the United Kingdom in the second Miller case.
These checks and balances on ultimate executive power are weak – but the challenge for any republican is that they should show how any replacement to the monarchy would also have checks and balances.
For a solution to the problem of the monarchy that would mean even more unchecked and imbalanced executive powers would not be an improvement – at least not from any liberal perspective.
In constitutional theory the Crown is the ultimate basis of not only executive power but legislative power (the ‘Queen-in-Parliament’) and even the judiciary (the Queen-in-her-courts).
This can lead to pleasing if not amusing events such as an application for judicial review brought in the name of the Crown (‘Regina‘) in respect of the exercise of the royal prerogative to prorogue parliament so that there can be a new Queen’s speech.
(That was the constitutional essence of the second Miller case.)
An understanding of the Crown therefore is essential to understanding at least the theory of the current constitutional arrangements of the United Kingdom.
And as the ‘United Kingdom’ label on the tin suggests, the Crown is the single most significant unifying factor in the current political union of England, Scotland, Wales and Northern Ireland.
If and when there is a republic then what replaces the Crown will also have to function as this all-purpose constitutional glue.
This is not to say abolition of the monarchy should not be done – but, like Brexit, there will be an awful lot of work to do just to duplicate current arrangements under a new label.
And, again like Brexit, the question has to be whether it would be really worth all the time and effort, regardless of your position as a matter of principle.
In the meantime, the powers of the Crown – both in respect of the public powers of the royal prerogative and the private powers such as the Queen’s Consent – still need anxious scrutiny.
That there is a broader question of whether there should be a republic should not mean any narrower questions should be disregarded.
The one thing that the Netflix series The Crown gets right – even if it gets a lot wrong in respect of historical detail – is that it conveys that the monarchy is an ongoing work-in-progress.
The Crown adapts, and it seeks to avert or survive crises with a combination of stubbornness and reinventions: an institution highly alert to its own precariousness.
And those who want to limit the misuses of the power of the Crown (and what is done in its name by the prime minister and others) should adopt a similar but opposite approach.
For keeping the powers of the monarchy properly in check is also an ongoing work-in-progress.
And in the happy event that we do one day become a republic, then keeping the powers of any presidency would also be an an ongoing work-in-progress.
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