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.
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.)
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.
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’.
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.
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.
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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