10th March 2021
Yesterday the writer Reni Eddo-Lodge tweeted a brilliant observation about our constitutional and media arrangements:
The institution of our unelected head of state relies on our approval for their legitimacy, because they've never sought our consent.
— Reni Eddo-Lodge (@renireni) March 8, 2021
This blog post expands on this brilliant observation.
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The starting point is sovereignty.
In the United Kingdom – or at least in England and Wales – the ultimate source of all legal power is the crown.
Acts of parliament derive their force from royal assent – and thereby so do all powers exercised under those acts of parliament.
Certain entities – such as the British Broadcasting Corporation – owe their legal existence to the legal magic of a royal charter.
Executive power other than under acts of parliament often is exercised under the royal prerogative or under the Queen’s privy council.
The jurisdiction of the high court is based on the old courts of the king’s (and queen’s bench) and the lord chancellor as keeper of the monarch’s conscience.
Magistrates are often justices of the (king’s and queen’s) peace.
And prosecutions and other proceedings in public interest are brought in the name of the crown – including at, well, the crown court.
The legal sovereignty of the crown – like turtles – goes all the way down.
(There are those who aver that this doctrine is a royal peculiar in respect of the constitutional law of England and Wales, and that the sovereignty of the crown may not have the same effect in the laws of Scotland and Northern Ireland.)
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But.
Sovereignty is not the same as legitimacy.
The legal source of power does not, by itself, render that power acceptable by the governed – at least in many complex societies.
Those who have and use ultimate power also need to have – or be seen to have – legitimacy.
In a republic, this problem can be addressed by the term ‘the people’.
The authority of a constitution is derived from ‘the people’ – and even prosecutions can be brought in the name of ‘the people’.
CTL+F “crown” > CTL+R “the people”.
Of course, in practice ‘the people’ may well have as little actual influence as they would do under a monarchy.
But that does not seem to matter.
Things are expressly done in the name of ‘the people’ and this appears to make all the difference.
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In a monarchy such as the United Kingdom the contest between sovereignty and legitimacy is met by the phrase ‘constitutional monarchy’.
The sovereignty – and powers – of the crown are thereby subject to the constraints – the checks and balances – of a constitution.
(And, yes: a country does have a constitution even if that constitution is not codified in a single written document – for there is a descriptive answer to the question ‘how is this country constituted?’)
These checks and balances apply not only to things done (or can be done) by a monarch himself or herself but also to things done with powers derived from the crown.
For example, an act of parliament will still need to be interpreted and applied by a court, regardless of royal assent.
And a prime minister and government is accountable to parliament.
Parliaments, in turn, are subject to periodic general elections.
And so the people are, in an indirect way, in charge – even if not formally as ‘the people’.
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But what happens when a ‘constitutional monarchy’ does not have (much) legitimacy?
As this blog set out in a recent post, the crown is a markedly fragile and malleable institution – notwithstanding its familiarity and durability.
For example, when the Queen was born in 1926, her grandfather had taken the throne as king of both Great Britain and Ireland, as well as emperor of India and elsewhere – and as she grew up, the majority of Ireland became a republic and the empire converted to a commonwealth, while the next king – her uncle – was forced to abdicate by a bunch of politicians.
The Queen and her inner circle are acutely aware of the precariousness of the monarchy.
So this need for constant validation.
For as Eddo-Lodge points out, the one thing that the monarchy really cannot do – by definition – is expressly seek the consent of the governed.
And so, not being able to obtain our consent, it seeks our approval.
But the approval – or apparent approval – of the people cannot be easily sought or obtained other than through the structures of the established media.
(The extent to which the internet and social media has disrupted and will continue to disrupt this predicament is not yet clear.)
Here we come to the tweet to which Eddo-Lodge herself was responding, from the commentator Mic Wright:
The moment where Harry tells Oprah that his family are scared of the tabloids and know that they *have* to play the game is the one that has most stoked that media rage. You’re not supposed to say out loud how the trick is done.
— Mic Wright (@brokenbottleboy) March 8, 2021
That the monarchy constantly needs such approval is not a bug of our constitutional arrangements, but a core feature.
And that the media – that can regulate that approval – in turn will use and abuse that power of conferring (apparent) public approval is also not a surprise.
With great power usually comes great irresponsibility, whatever the political philosopher Benjamin Parker says otherwise.
We therefore have the worst of both worlds.
A source of sovereignty that is needy for legitimacy, but one which cannot obtain that approval directly and so is dependent on a media that will naturally abuse its power.
There is therefore a hole at the centre of our constitutional arrangements.
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Most of the time this gap does not matter.
Days and weeks pass, royal scandals come and go, and things look calm and carry on.
Crises are averted – and the crown and the media negotiate a new relationship of use and abuse.
But.
Sometimes crises may not be averted, and the problems that do come will not then conveniently go.
And there may be a reckoning.
The constitutional equivalent of a credit crunch.
Perhaps the fall-out from the Meghan and Harry interview will not lead to any great upset – nor any fall-out from the activities of other members of the royal family.
Perhaps all this will be soon forgotten, with the coming of spring and the (heralded) end of lockdown.
Yet, even if the ship of state stabilises it will still be just as prone to capsizing.
And that is ultimately because the sovereign cannot obtain legitimacy directly from consent, and so needs our approval instead.
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Contrary to what you have written, when the present Queen was born in 1926 Ireland was already independent, so the then King was not its monarch.
Sorry – wording changed to convey the point I was seeking to convey – though there is no clear answer to who was head of state of Ireland before 1948
Until the 1937 Constitution came into force, it seems pretty clear that the UK monarch was head of state. Afterwards, it’s not so clear; there was an elected president. Was George VI also “King of Ireland”? However, the accreditation of ambassadors was done by the monarch. This was much clearer when Ireland left the commonwealth in 1949; the president was the head of state.
Perhaps there is a need to clarify what exactly a “head of state” does that other people can’t do.
I thought Ireland as the Irish Free State was a dominion until 1938 or so – which means the King was the head of state?
The de Valera constitution of 1937 was clear that the President was head of state, and people of Ireland voted to adopt that constitution. Are you saying that Ireland was itself unclear on the matter, or merely that UK law had yet to catch up with reality?
If the latter, is the lack of clarity you mention in regard to the Irish head of state not matched by an similar lack of clarity around the status of Northern Ireland until the Irish constitution was amended post-GFA to remove Ireland’s territorial claim to it? In which case, would you say that NI’s status was unclear until then?
You have not encountered before DAG’s first law of clarity? Any proposition that has to be defended as ‘clear’ will not be clear.
Not sure about the premise that consent is unobtainable. After all, the Queen is also head of state for other countries. In Australia there may yet be a referendum in which the voting public decide to have a different arrangement. In principle there’s no reason why the UK could not do the same, although in practice I concede it’s highly unlikely
Even if you were right – and there was a referendum with approval – the problem would still be there for next morning, as the crown would then face the prospect of another referendum, and so will be more precarious than ever
Can the 61 word statement from the Palace hold the line that these matters will be dealt with in the “Family” or as it seems to be known “The Firm”?
Interesting to compare with other (European) constitutional monarchies. The only one I am slightly familiar with is Belgium, where the road has certainly been rocky from the post WW2 referendum to more recent (and familiar to British followers) family ‘scandals’.
The key event in my memory was around 1990 when Baudouin abdicated for a couple of days rather than sign a new abortion law. This was – of course – controversial but ultimately smoothed over.
My point is that the interesting and pertinent points surrounding authority and consent are relevant, and have perhaps been addressed, elsewhere. There is always a danger that we (whoever we might be) assume that our problems are unique and have to be solved without any reference to outside experience.
“with great power usually comes great irresponsibility”
Terrific phrase!
Thank you. I was reminded of an agit-prop play I wrote 40 years ago which we toured we found the country to unemployment centre, trade unions, etc.. It which was a comic book blast through 1000 years of British history as seen from the peasant’s viewpoint. At the start the Peasants (their actual name) are tending the land when a ‘Lord’ appears.
Lord: Good day.
Peasant: Watcha.
L: Ahem!
P: Yes?
L: No, you don’t understand. I am a LORD!
P: [aside] We’ve got a right one here.
L: This is my land.
P: You what?
L: This is my land, I own it.
P: Who says?
L: The King.
P: Never heard of him. [to Peasant 2] Have you?
P2: No. So who’s this king when he’s at home then?
L: He’s the Monarch, the Head of State, The Boss. He owns all the land. [The King is wheeled on. He bows] Your Majesty!
P2: [to audience] Have you ever thought about this king business? What makes HIM a king? He’s just an ordinary man, like any any other. He’s got all the working parts. If you cut him…. [takes out knife and nicks one of the King’s fingers.]
King: Ouch!
P2…..his blood isn’t blue. His power as king isn’t in him a man. It’s a social power. People like that [points to Lord bowing and scraping] treating him like that. That’s what makes him a king. Thank You.
[King is wheeled out]
I think Monty Python might have beaten you to it.
Python’s surrealism certainly had an influence, but we were using it make political points. The main source material was A.L. Morton’s ‘A People’s History of England’, a wonderful, scholarly ‘bottom-up’ view of our turbulent history. 🙂
…and that brilliant Monty Python sketch is NOT making political points?
I think there are two sources of the current crisis. L’affaire Meghan is the visible one, but under the water, the unresolved allegations against Andrew are much more potentially damaging.
Princess scandals come and go (which is itself not something to be happy about). But after Yewtree, sexual abuse by the great and the good is much, much more explosive. And as many institutions, including but not limited to the Catholic Church, have found, coverups and stonewalling are even more toxic than the deeds themselves.
A very interesting post on a point that had never occurred to me in this form. Perhaps one could argue that there is an indirect legitimacy. Crown’s position, although theoretically superior to the Government, is in reality dependent on it. It was the government that forced the abdication of Edward VIII; it would be the Government that would decide on whether to hold a referendum on the monarchy. Unless and until it does, it accepts the notional superiority of the Vrown. But the government is subject to parliamentary will and can be thrown out by the people at an election – thus the indirect grant of popular legitimacy. In this light, the hole in our constitutional arrangements could be regarded as a balance between their Bagehotean dignified and efficient parts.
Once it becomes clear to the subjects, rightly or wrongly, that the survival of the monarchy as an institution was in the gift of elected politicians, the power of the press [the owners of the press] to put political pressure on politicians to force outcomes it demands while keeping its own hands clean makes the monarchy arguably more vulnerable.
It is interesting to reflect how all this applies to a country like Canada where the Queen is Head of State, but the approval/legitimacy issues are even starker.
The institution (with a Canadian citizen as Governor General to represent the Crown) works very well, but the link to a family living across the Atlantic is becoming harder and harder to sustain. Yet, under the Canadian Constitution, the Provinces will need to agree unanimously on changes to the current system. That is a formidable hurdle.
One interesting idea that was floated a while back was that the arrangements could be ‘patriated’ with minimum disruption by means of a very small constitutional amendment. At present, where the Canadian Constitution first mentions the “Crown”, this is defined by reference to the Act of Settlement. This might be replaced by a new definition: “abstract noun representing the Canadian people”.
Some new arrangement would need to be found for choosing the Governor General – at present appointed by the Queen on the advice of the Canadian PM. To avoid the cost (and politicisation) implied by making this an elected office, the choice might still be for the PM, subject to securing two thirds majority approval in both Houses of of the Canadian Parliament…
One should never shine light upon magic.
Once upon a time the monarch had legitimacy – you got chopped if you did not respect. Now we retain the gold coaches and crowns and pay them a living wage, in return we are entertained (at our expense). In particular the newspapers expect royal babies to be dandled for their cameras and extravagant frocks to be displayed. For state occasions Her Maj shows lesser nations how to hold a knife and fork and smiles sweetly however vile the visitor. This is the bargain we have with royals and a whole industry depends on it.
However, the contract with the Press says ‘when we say dandle brat – you dandle brat’. Failure to do so and pose and simper as required will annoy and result in unkind headlines until the miscreants clear off to a desert island or come to heel. That is the bargain – loads of undeserved dosh and doing nothing much in return for being at the beck and call of the real power. Or no dosh and get ignored – and harsh headlines. Rather that than their predecessor’s problem – the headsman’s axe. Nowadays one is a very well paid but potentially redundant employee. Its a tough life playing at monarchs.
The Third Estate truly does hold the Crown. How the next generation of royals handle this rather degrading life I don’t know. Anyone with a sense of self-worth would probably chuck the job in and walk away. But the royal industry is too big to fail, too much money in it, even the Press needs it, someone will be found to play the game. Curious we spend so much time and money on something we don’t really need.
Or, not wishing to be harsh, something for which there is little cause for respect or admiration.
The lavish and sumptuous manner to which this family feels entirely entitled is no longer fitting, were it ever.
the same tabloid press that brought us brexit – you could recycle this excellent piece substituting « EU » for « the crown »
May be, this is off topic or perhaps not.
I remember an interview of old King Farouk of Egypt, a century ago in an Italian newspaper on surviving monarchies. He said that in the long run only five kings would remain: the King of Hearts, the King of Diamonds, the Kink of Spades, the King of Clubs and, last, the King of England
“There is therefore a hole at the centre of our constitutional arrangements.”
The hole is God-shaped: “Be thy head anointed with holy oil: as kings, priests, and prophets were anointed. And as Solomon was anointed king by Zadok the priest and Nathan the prophet, so be you anointed, blessed and consecrated Queen over the Peoples, whom the Lord thy God hath given thee to rule and govern.”
When enough of the people were theologically aligned, the legitimacy of the monarchy seemed self-evident. We each took our place in society. “Born to reign over us.” As fewer of us believe in God, the monarchy degenerates towards celebrity (a person whose legitimacy comes from the media).
Consider it from the other angle: if one believes in one’s own divine appointment (whether as Queen or anything else), it makes no sense to complain or explain. The more complaining and explaining that takes place, the more the rest of us realise that *they themselves* no longer believe in their own sanctification. This is one of the things that unconsciously creates such great distaste among traditional royalists for Meghan’s way of doing things.
The recent debate and the wider monarchy question seem to me to come down to two views of the world divided along familiar lines: natural order versus consent; vocation versus ambition; and, it now seems, God versus the tabloids.
It was interesting to hear Harry talking about being trapped in a system. This American Politico piece points out that he and Meghan have simply swapped one system for another, in a different industry with different demands placed upon them. “In order to stay commercially relevant, they’ll have to produce great content for Netflix and Spotify before their novelty wears off. That’s no easy feat. ”
https://www.politico.com/news/magazine/2021/03/08/meghan-markle-prince-harry-oprah-interview-media-publicity-474488
So now the government and the monarchy are both in thrall to the tabloids. Consent / approval is dictated by favourable headlines in the Daily Mail and Sun. No wonder they are terrified of the “red tops”.
David: Burke, 250 years ago, pondered these very questions to the same result. “The power of the crown, almost dead and rotten as Prerogative, has grown up anew, with much more strength, and far less odium, under the name of Influence.” And he also said, “The greater the power, the more dangerous the abuse.” Home secretary anyone? Parliament may be one with the people, but cabinet power is something more.
Thank you for the interesting article. I was interested to hear your repeated reference to consent and the role of the media.
I was wondering if this was an (unconscious?) echo of neo-Marxist theories around the manufacture of consent. Lippmann and Chomsky et al? The monarchy’s dependence upon the media for support is a design feature rather than a design flaw, you could say.
A second – unrelated – thought relates to your observation about the impact of the internet on public support. One field where such developments have been closely followed is the armed forces in the US and UK – there are parallels between the importance of securing popular support for overseas military missions BECAUSE they do not require parliamentary/congressional support with your point about the monarchy.
Rachael Gribble et al. 2014 identified some correlations between support for the Iraq and Afghanistan missions with the perceived basis for the missions.
Finally – you make an interesting point in passing about the internet and public opinion. I would tentatively suggest that it has greatly complicated the process of manufacturing consent, given the difficulty in creating majorities for controversial actions. Leaving Brexit aside – it is remarkable that votes on a potential Syrian intervention were held in parliament before a decision was taken.
The constitutional equivalent of a strange loop?
Fans of Douglas Hofstadter will be familiar with the concept whereby meaning (or at least the concept of meaning) emerges from recursion.
Escher’s ‘Drawing Hands’ appears on the surface as an interesting paradox, one of mutual dependency (or chicken and egg), however the image hints at other levels, for instance the fact that this is not simply a drawing, but a drawing of a drawing. As viewers of the drawing of the drawing we also are participants in the illusion, adding yet another level.
In revealing the ‘trick’ Harry and Meghan are like the hands in the ‘inner drawing’ which appear to breach the level in which they are expected to reside. Media may have supplanted religion as the means by which legitimacy is maintained, and social media may yet supplant the mainstream media.
Our consent has arguably never been given explicitly (as the excellent Python clip above illustrates) but if legitimacy is an emergent behaviour, can it or does it need to be?
There aren’t enough fans of Douglas Hofstadter and emergent phenomena – so it’s worth recognizing it when it appears – nice one – whatever the forum.