16th September 2022
When the Queen died and a national period of mourning was announced, I thought it would be an apt thing to devote the posts on this blog to the monarchy during that period.
This is not to say that there are not more pressing problems in our polity: there certainly are, and they are urgent.
But this blog often engages with constitutional matters – and the organising principle of our constitution is the monarchy.
There is almost no developed and distinct concept of the “State” in English law.
Instead, we have the Crown, from which the legislature (the “Crown-in Parliament”), the High Court, and the executive (the “Royal Prerogative”) all – theoretically – derive their power.
Criminal proceeding and applications for judicial review are done in the name of the Crown, and so on.
There is even an entire species of law – from the Privy Council and including Royal Charters – that is parallel to parliamentary legislation and is just as much of legal effect.
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This general nature of the Crown co-exists with certain privileges and rights.
This blog has previously covered the so-called “Queen’s Consent” – which enabled the monarch to have prior approval of legislation which would affect the Crown.
The procedure even makes a private law firm in Lincoln’s Inn part of our constitutional arrangements.
This is in addition to the advantages that the Monarch and the Royal Estate have in respect of taxation matters.
It is not a satisfactory situation and, although a republic is unrealistic (at least in the foreseeable future) there are things that can and should be done to remove these consents and privileges.
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There are also questions to be addressed about the scope and use of the Royal Prerogative.
In both the Miller cases, for example, the contention was seriously made that the matters in hand were no-go areas for the courts, and that these decisions to be made by a Prime Minister were not justiciable.
In both cases, the Supreme Court said “no”.
But the impulse of those who hold prime ministerial power will continue to use powers that are beyond the reach of legal challenge.
The fiction is, of course, that these powers are being exercised for and on behalf of the Crown – but that fiction is unlikely to convince many as the twenty-first century continues.
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I would recommend that we have a – well – Royal Commission on the remaining and residual powers and privileges of the Crown within our polity, with Parliament then legislating to place the retained powers and privileges on a statutory basis and discarding the rest.
The monarchy of the United Kingdom has had a “re-set” from time-to-time, and this may be a good time for such an exercise.
The late Queen was acutely aware – from what happened to her own uncle and to other twentieth century monarchs – of the precariousness of her position.
And seventy years later – by employing such a approaches as “the firm” – she was able to hand the Crown safely to her heir.
Such a “re-set” could not sensibly be done while the later Queen was alive – and some would say that she and Philip did their own subtle “re-set” so as to meet the challenges of the monarchy in the modern media age.
There is no reason why we cannot now have a broader “re-set” – with a hard look at all the Crown’s powers and privileges in the round.
Every constitution – and every element of the constitution – should be regarded as a work in practice.
Next week – after the funeral – national media attention and focus will return to other political problems, including the urgent cost-of-living and energy crises.
There may not be another time for a while to discuss the sort of Crown that we want as part of our Constitutional arrangements – and what realistic and practical reforms can be made.
Yes – there will be some how will just assert that simply they want a republic – but I would prefer for as many as possible to think realistically and practically about what can be done to improve what we have got.
And if such a “reset” is not done, we will find ourselves at the next funeral and accession decrying the lack of sensible reforms to this central part of our constitution.
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Its interesting to observe the number of people who desire to be part of history. Charles is in his seventies. I imagine the vast majority of these people will once again “be part of history” when Charles dies and the next royal accession takes place. It seems to me the historical importance of the current ceremony is diluted when the following one will likely be within the next 20 years. And we have to go through all this again…..
As the Royal Prerogative, I gather has not been formally seceded to the First Lord of the Treasury, sorry, the Prime Minister, who is primus inter pares amongst the King’s Ministers, what is there to stop a Meddling Monarch taking it back, even if only on occasion?
I was intrigued to learn, longer ago than I care to remember, that the Cabinet, meeting in a large closet I think, came into being to stop the Monarch from picking off Ministers individually.
Effectively, they formed a committee of Members of the Commons and the House of Lords, with a majority in the Commons, and settled on the First Lord of the Treasury as their leader and representative in most dealings with the Monarch.
That would, of course, be the First Lord of the Treasury appointed by the Monarch and whom the Monarch expected his Parliament to support on appointment.
One of the exceptions to this arrangement remains the Chancellor of the Duchy of Lancaster, who actually carries out functions and exercises some power on the part of the Crown in the Duchy.
What is to stop a Monarch, who has been used to bombarding Ministers with unsought advice, good, bad or indifferent, during his long decades as Prince of Wales insisting on individual direct lines of communication with his Ministers greater than his mother felt necessary?
I fear it is already too late to do this. Charles took over a well-oiled machine at the moment she died and there will be no break to do a reset in. Certainly no one is pushing at him to change anything. His mother inherited a monarchy worn down by war and still weak from the abdication crisis. She had to reinvent it as “the firm” herself.
He will no doubt tinker with things. That could create problems which may then force a reset.
Politics is the art of the possible and realistically a British republic isn’t possible, or at least likely. There’s a danger that some will settle for nothing less so will show no interest in reforms. We saw this with the AV referendum, when the PR purists rejected AV and helped to ensure we were left with FPTP. Unfortunately governments also like to be able to wield the powers of the Crown. Only recently we saw Johnson effectively take back the power of dissolve Parliament from the Commons.
How curious it is that republics seem quite often to become dictatorships – occasionally even hereditary. We all have observed ‘republican’ dynasties at work.
I would argue that the Monarchy seems, ironically, to be an ultimate protection for the people’s democracy against populist tyranny,
The problem with Republics occurs where the Head of State has too much power. This can happen with an Executive President, e.g. Trump. Our Parliamentary system would work just as well as it does under a non-executive President as it does under a Monarch, with the benefit that said President can be changed when their term is up.
We were incredibly lucky with Queen Elizabeth II as Sovereign. There’s no guarantee Charles III will be as good. Though as a declared Goon Show fan he has the required sense of humour at least.
“We were incredibly lucky with Queen Elizabeth II as Sovereign.”
Were we? How do you know? Because the Daily Mail says so?
“There’s no guarantee Charles III will be as good.”
I fail to see in what meaningful way he might be accurately judged as being worse – what criteria will be be judged on? Who gets to judge?
No. Like his mother before him, he is stepping into a non-job, the performance of which is not appraised in any real way; nor will the vast majority of what he does (or doesn’t do) be visible to us commoners anyway.
Like Elizabeth, we’ll be told what to think by the tabloids; and as they will be the only source of any information about his conduct and activity, it will be entirely useless as an insight into what he really gets up to, because doubtless they already have their agendas lined up.
I’m not a monarchist. I certainly don’t get my view of Elizabeth II from the Daily Mail. It’s my own opinion from what I’ve observed over time. Mainly in terms of her public representation of the UK abroad.
Likewise for Charles III, we will see how well he is respected over time.
I reject the idea we are told what to think by the tabloids. Some people are that compliant, others aren’t. I think for myself.
When the reigning Monarch is unwilling or unable to reject a prorogation request – as we witnessed – I fear the concept of them as the ‘backstop of last resort’ is perhaps too optimistic?
“I would argue that the Monarchy seems, ironically, to be an ultimate protection for the people’s democracy against populist tyranny,”
And how’s that going for the UK right now? Not remotely well, from what I can see.
Your argument is transparent “cherry picking”, Geoffrey: it is no more innate in republics that they become dictatorships, than it is innate in monarchies – but many (most?) republics have come about as a reaction to dictatorial monarchies.
Even our own, after the elimination of Charles I.
As another “soft” republican, I would welcome a Constitutional revolution “lite” in the form of an ironically titled “Royal Commission” into the Constitutional obligations, powers, rights, legal and taxation exceptions of the monarch and his/her family. However, it would be a sticking plaster because the UK needs a root and branch revolution in its voting system, houses of representatives, law, executive and taxation system. The combination of royal pomp and political corruption of an “Honours” system might have been sustainable when we were a “Great Power”, had an Empire and commanded considerable “soft” power around the globe. Now it just looks corrupt and ruritanian. But great for tabloid copy.
‘And if such a “reset” is not done, we will find ourselves at the next funeral and accession decrying the lack of sensible reforms to this central part of our constitution.’
And those who could have but didn’t effect such reforms will ignore the murmurs, and the dull ache will continue.
A Truss government will never be inclined to “reset”; And while it might not necessarily be electoral suicide for Starmer, he doesn’t come across as a gambling man.
Who guards the guards? I would thoroughly approve of such codification. BUT. Could our current crowd of third rate time servers be trusted to do a good job? Or any job at all?
Do you think we could ever move to a more Danish model? I don’t know a huge amount about it but they seem to me to have less constitutional baggage to contend with and fewer financial privileges.
The oddest thing about the crown to me is that, in theory, the King has absolute power but, in practice, he appears to have none at all. This means that, in theory, there is a check on the powers of an executive with a majority but, in practice, there is none.
Would it not be better if the King did exercise some power? The British people appear to like having a monarch so this might be quite popular. He could act in two ways. The first would be to influence the direction of travel of the government. The second would be to exercise an actual power of veto over any legislation.
I’m not sure if this is blindingly obvious or amazingly stupid. Thoughts?
“The oddest thing about the crown to me is that, in theory, the King has absolute power but, in practice, he appears to have none at all. This means that, in theory, there is a check on the powers of an executive with a majority but, in practice, there is none.”
Which observation perfectly sums up the absurd pointlessness of the current arrangements.
“I’m not sure if this is blindingly obvious or amazingly stupid. Thoughts?”
Absolutely the former, Monica – if we have to (rather, if we choose to) put up with them at all.
I think the problem is that the monarch has no democratic legitimacy. Monarchies where the monarch did exercise powers of this kind have not survived into the modern era; the UK monarchy has survived perhaps in part because it has ceded the kind of overt power that can be opposed to the power of democratic institutions.
Wise words, David. I suspect most people know little, anything about what is now presumably the King’s Consent, or the tax privileges that the monarch enjoys. Queen Elizabeth got away with a lot (I can’t think of a politer way of putting it) ecause she was personally esteemed. King Charles is not, and people might be less inclined to see him granted the same indulgence.
Interesting to hear Mark Drakeford say, diplomatically of course, not to expect the investiture of William as Prince of Wales to be the circus surrounding Charles’ investiture. I think this reflects more on the monarch of the time than on the prince.
“Queen Elizabeth got away with a lot”
Yep – while actually doing very little, of actual tangible benefit to the man in the street.
I note the main controversy over the last few days has been whether or not certain people could wear military uniforms at certain functions. A subsidiary issue has been the efficacy of fountain pens. it could only happen here [or in 1900ish Austria-Hungary, which may be a precedent in more ways than those].
We are holding or clinging to relics in a range of areas, such as Northern Ireland, the Established Church, the voting system, MBE’s etc etc.
These things are preserved because of a national unwillingness to change and a well oiled propaganda machine in the majority of media outlets that needs to keep these anachronisms in place.
What can we do about it? Keep setting out the common sense position and wait for the younger generation to take action. See the French Revolution etc etc.
A People’s Assembly (cf. Ireland on abortion) would be my preference to a Royal Commissions. One of the primary functions of Royal Commissions is to make sure that nothing important changes. The Irish assembly effected momentous change on something that had been thought central to the culture of the Republic.
Mr Green
Timing is (nearly) everything. Now is not the time for this column, however correct it may be.
Why on earth not?
You can be as upset as you like about recent events, but you don’t dictate to others how they should feel.
I am sure we couldn’t have any kind of radical reset. What we might shuffle slowly towards is a softer one that changes things on a more subtle level. But even that would have to occur in the right context and the right framing. It would never happen with this government, is unlikely to do so in the next or the next, as far as I can tell. (Though who knows, maybe we could be surprised?)
It is often claimed the UK is a multi cultural open society.
Why not then pass a short Act saying that the Monarch can be of any religion or faith and not simply a Protestant ?
Would there be anything « wrong » in doing such a thing ?
Herein lies the problem because other issues can soon be found.
Charles, as has been noted, has sworn an oath to uphold the Protestant religion in Scotland, (and no doubt elsewhere — these things can become habit-forming). Only his god, through the agency of said god’s clergy, can release him from that oath. If Charles suddenly agreed with, say, Pope Pius XII, that the only authentic Church was that of Rome and that all rival claimants were led by clergy whose “holy” orders were invalid, it follows that earlier commitments to Protestantism at any level should be seen to cut no ice with Almighty God. As far as his new spiritual advisors were concerned, he would be home and dry. Whether that would lead to another beheading at the Palace of Whitehall is another matter. The C. of E. already has one “King Charles the Martyr”. (There’s a church of that name in Falmouth and another in Potters Bar.) It seems unfair that the Catholic Church shouldn’t have one too.
The monarchy would need to be untangled from the Anglican church for that to happen as the King or Queen is (since Henry VIII) the earthly “head” of the Church of England. But that might be a good thing, to be honest. At one point, as I understand it (in the 18thc?) they skipped about 53 people who were in line for the throne for the first person who was Protestant. That’s always seemed pretty unfair.
What would be wrong is the fact that all religions are bogus. As long as it’s a mere tradition which doesn’t really mean anything, it’s harmless that the monarch is also the head of a church that nobody really cares about, but there are religions which are still taken seriously by their believers and it would be a big mistake to add to their power and credibility.
I beg to differ on some points. I think that the current constitutional arrangement, on the whole, works very well.
In the last few years, we have had a government that has ignored most of the conventions which should guide how it operates. However, the House of Lords (which is not elected with most of its members being appointed for life, so they can’t be thrown out on the whim of a party whip) has done quite a good job in curbing the government’s excesses. The courts have also played their part in stopping the government overreaching.
What we might need next is for the Monarch to do the same as the government did, and ignore some conventions. This would not be possible if he was tied down by legislation.