Category: Constitutional Law

A Prime Minister in Name Only

17th October 2022

For a good part of the history of Prime Ministers, the title of “Prime Minister” was informal.

Until the late nineteenth century it was not used in official documents and it was only in the twentieth century that, here and there, it began to leave a trace on the statute book.

It was a title that was used just to describe the most dominant minister of the day, the one who controlled the cabinet and had the confidence of parliament – usually the First Lord of the Treasury but sometimes not.

And if today one asked an alien looking down from space who was the Prime Minister of the United Kingdom, that alien would assume it was Jeremy Hunt.

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Billy the Fish and the Green Baize Vampire

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One of the features of our uncodified constitutional arrangements is that the power of the Prime Minister varies depending on individuals, events and politics.

The last three Prime Ministers before Truss all lost office between general elections and, as this blog has often pointed out, every Prime Minister since 1974 has either gained or left office between general elections (or, most recently, both).

But loss of office is not exactly the same as loss of power – our constitution is so flexible that not even loss of office is a requirement for losing power.

And what we have at the moment is power moving away from the nominal Prime Minister towards another figure in the Cabinet.

An allusion, in a playful way, to the distinction made by the greatest of  our constitutional commentators, Walter Bagehot, between the efficient and the dignified (or, here, undignified) elements of the constitution.

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Many assume there will have to be a general election in the current circumstances – and there certainly should be.

But if the cabinet and the government majority in parliament can accept the current arrangements then there is no way forward to an early general election.

And in the meantime, and like the personal tax rate reduction, any influence whatsoever of Truss over policy is “delayed indefinitely”.

For it is Hunt who has control over policy and has the confidence of parliament – and of the markets.

We now have a Prime Minister in name only.

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(Apologies to Billy the Fish and Billy the Kid and the Green Baize Vampire.)

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Law and policy on a day of political chaos

14th October 2022

Well.

The word “chaos” – like “crisis” – can be overused in politics.

But on some days the word is apt.

A Chancellor of the Exchequer flew back after cutting short his meetings with the IMF in Washington only to be summarily sacked, and the government performed yet another U-turn on its “growth” mini-budget with what was a mini-press conference.

So much for policy instability – but it is the politics that has gone beyond mere instability into chaos.

The authority of the current Prime Minister within the governing party has simply collapsed.

They are simply not turning up any more:

The lack of authority is related to humiliation in the markets:

Perhaps this is the reason “Brexit” was named after “Grexit”.

These are not normal times, of course, but it is hard to see how the current Prime Minister can survive much longer in office – and even if she does, her authority is extinguished.

And when the Prime Minister’s power is low – let alone non-existent – then intense political instability will result until and unless another Prime Minister with authority can be put in place.

The centre cannot hold.

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Stepping back, we must remember that the office of Prime Minister has little formal power.

The name of the office barely features in the statute book – and for a good part of its history, the office had no statutory recognition at all.

The power of the office rests on two bases.

The first is the power that derives from the Royal Prerogative and other means of non-legislative power.

The Prime Minister can, in practice, hire and fire ministers, (again) call general elections, confer honours, set the policy agenda and chair the cabinet and cabinet committees.

But this executive power rests on the confidence of the Prime Minister’s politcal allies.

And once that respect is gone, it is gone.

The second power is that which comes from effective control of the legislature, especially in respect of matters on which there is a general election mandate.

Command of the House of Commons means control of the Finance Bills, and thereby mastery of revenue and taxation; and a general election mandate for a policy means that the House of Lords cannot needlessly delay or block the relevant legislation.

A Prime Minister with a substantial majority won at a general election has the greatest prize that the constitution of the United Kingdom can bestow.

And on paper, the current prime Minister has a parliamentary majority of about seventy.

But, as this blog recently averred, we now have, in political reality, a hung parliament.

The Prime Minister cannot even be confident that she could get a Finance Bill through the House of Commons unscathed, let alone any other contentious legislation.

And so, this Prime Minister has no authority in government and no control of Parliament.

It is only because the last few years have seen many other politically odd things that one can think that the current Prime Minister can survive another week.

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The striking thing about this political predicament is that it is entirely self-inflicted.

There was no objective reason – no requirement – for that mini-budget before the conference season.

And there was no good reason for the government to “press on” when it became obvious it had lost the confidence of the markets.

The reason they did so is not ideology – for as this blog contended not long ago, many successful politicians have been guided by ideology.

The problem with current Prime Minister is not that she has an ideology but that she seems to have nothing else.

One suspects that even now she has no sense of what actually she has got wrong: about why reality is not according to her political vision.

And so we have politicians who idolise “free markets” being destroyed one-by-one by the market.

It is quite a spectacle.

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We now get to see how our constitutional arrangements deal with yet another Prime Minister being forced from office between general elections.

It is not, of course, unusual for a Prime Minister to either take office or leave office between general elections.

As this blog has said many times, every Prime Minister since 1974 has either taken office or left office between general elections.

The unusual thing is now it is happening frequently, and we are now on our fourth Prime Minister since 2016.

The cause of this political instability is not that the governing party cannot obtain a majority – it has had a working majority between 2015-2017 and from 2019 onwards.

There is a deeper problem in the politics of the United Kingdom which means that even a governing party with nominal majorities is being relentlessly wrecked.

Brace, brace.

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The Scottish independence referendum case before the Supreme Court

12th October 2022

Yesterday and today there has been a fascinating case argued before the Supreme Court.

The case is about whether the Scottish parliament can legislate not for independence but for a non-binding referendum on the question of independence.

There is no dispute that actual independence is a matter legally reserved for the parliament in Westminster.

Nonetheless the Scottish government has come up with this clever wheeze of saying that even though the union is a reserved matter, there should be nothing to stop it holding an advisory referendum on the issue.

But the really clever wheeze is how they have framed this case so that it is being heard at the Supreme Court even without a bill being presented to the Scottish parliament let alone passed by the Scottish government.

The Scottish government has done this by means of a “reference” – which allows the devolved governments to refer questions directly to the Supreme Court.

This is unusual both legally and constitutionally, as the Supreme Court is normally an appellate court and not a court of first instance.

And so this is a rare occasion where the Supreme Court is acting, in effect, as a pure constitutional court, rather than just happening to hear an appeal of a constitutionally interesting case.

The Supreme Court website sets out the following:

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The reference is framed as being about whether it is open to the Lord Advocate to advise that a bill with such a provision can be brought forward – as set out in the Scottish government’s published case:

This is an ingenious approach.

And nobody knows if it will succeed – not least because there is no precedent to guide us.

The Scottish government needs to jump two hurdles.

The first is the jurisdictional hurdle of whether this is a question that can even be answered by the Supreme Court at this stage.

The second is the substantial hurdle of whether such an advisory referendum is within the competence of the Scottish parliament.

On the balance of probability, any party to litigation needing to jump two such high hurdles is unlikely to succeed.

But nonetheless this is certainly a case to watch with interest – and you should, if possible, watch the footage of the hearings linked to at the Supreme Court page.

My own personal view from having watched some of the hearing is that the Lord Advocate – on behalf of the Scottish government – put the case as well as it could be.

In particular, she explained the legal route that the Supreme Court could take should it want to do so.

In response, the United Kingdom government was less impressive, though this may just be my personal bias.

But little is likely to depend on the oral advocacy – the Supreme Court now has to digest the extensive written documents which have been placed before it by the parties, and that may take months.

So we may have some time to wait.

Whatever the decision, it will be interesting to read the court’s reasoning in this exceptional and potentially consequential case.

For we all know about “advisory” referendums, don’t we..?

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The Good Law Project has had another bad day in court – but this decision raises serious questions about enforcing the “public” element of “public procurement”

10th October 2022

The Good Law Project (GLP) has had yet another bad day in court.

Many are uncritical fans of the the GLP – I am not, but neither am I a committed opponent of it either.

But there is something in the recent defeat which I think should prompt wider discussion.

For not only did the GLP lose the case on the substance, it also lost outright on the question of “standing” – that is whether it was in the legal position to bring the case in the first place.

In essence: the GLP was not an “economic operator” adversely affected by the procurement decisions in question, and so it was not able to bring an application for judicial review.

If you read the court’s reasoning on this – from paragraph 498 onwards – you can see the judge’s points.

But.

The law of public procurement is distinct from the law relating to procurement generally because public authorities have to comply with certain public law principles when making decisions – principles with which a private entity making procurement decisions do not need to comply.

This is because those principles – such as transparency, equal treatment and so on – are for the public benefit, and not just the interests of the (potential) bidders.

And if these principles are to have teeth – that is, if they are to make a difference – then they need to be enforceable.

Else they are polite fictions.

An adversely affected competitor may perhaps have a private commercial interest in challenging a botched public procurement decision.

But that will be on private, selfish grounds – and not out of some sense of altruism.

So how are the unselfish public law principles to be enforced?

Given these principles are there to benefit the public generally, should it only be left to when the breach of principle overlaps with the private interests of a disappointed competitor?

One answer is to give bodies such as GLP standing to bring claims.

But the import of this judgment is that such a wide view is not valid.

And perhaps there are questions to be asked about self-appointed interest groups bring such strategic and tactical litigation.

But if not groups such as GLP, then who?

In the European Union there is an easy answer: the European Commission can bring proceedings for breaches of European Union procurement law.

But there is no such body in domestic law: there is not really a public procurement equivalent to the Office of Fair Trading.

Perhaps there should be.

But, with this decision on standing, it is not obvious what the “public” means in “public procurement”.

Yes, the GLP has many critics – and some of those criticisms are valid – but there is also something not quite right about a system of “public procurement” where the public law principles of transparency, equal treatment, and so on, can only be enforced if they happen to coincide with the private interests of a competing economic operator willing to assume litigation risk against a major customer.

(And few – if any – regular government suppliers want to litigate against their main customers, as it leaves a poor impression for the next tender.)

If the courts are going to take this strict view of standing, then the “public” element now needs to be built into the process some other way.

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The curious incident of the “absolutely devastating” Johnson legal opinion is now even curiouser

27th September 2022

You will recall the “absolutely devastating” legal opinion provided for the then prime minister Boris Johnson.

This was in respect of the work of inquiry of the House of Commons privileges committee into whether Johnson had committed a contempt of parliament in respect of his seemingly misleading statements on the floor of the house.

On 1st September 2022, it was reported on a newspaper website:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.’”

And on the front page of that newspaper’s print edition dated 2 September 2022 we were told:

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This would have been huge, if true.

The capital-o Opinion in question was this – signed by two barristers as instructed by a leading criminal firm of solicitors.

The Opinion is also dated the same day as the newspaper website article: 1 September 2022.

This must mean that the source of the “absolutely devastating” quote either was referring to a draft form of the Opinion or was providing a view the same day that the Opinion was signed.

We now know that the cost of this legal advice was between £112,700 and £129,500 of taxpayers’ money, as the following tender information was published by the government on 2 September 2022:

(Hat-tip Aubrey Allegretti, here and here.)

This tender information indicates there was no competitive procurement exercise: the government seems to have gone straight to the leading criminal defence firm in early August 2022.

That firm, in turn, instructed two public law barristers (not criminal law specialists).

What is remarkable about this procurement is that the government has its own legal service, with many specialists on matters of parliamentary procedure.

(Which is obvious, if you think about it, given the close working relationship between departments and Parliament.)

There is no obvious good reason, if this was a governmental matter (rather than a matter for Johnson as a Member of Parliament) why this advice could not have been arranged by the government legal service who would have instructed barristers on the Treasury panel.

Indeed, it is odd that this was not done – especially as the junior barrister involved is already on the Treasury panel.

Why were the instructions routed through an external law firm and not the Treasury Solicitor – especially as this is not a criminal law matter?

Who authorised this procurement and use of public money?

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Indeed, as this blog has already averred, it is not obvious that this was a legal matter at all, let alone a criminal law matter.

The matter is entirely one of parliamentary procedure – and is not thereby justiciable by any court.

In my view there is even force in the argument that the Opinion does not contain any legal opinion.

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We now know that on 2 September 2022 – the day after the Opinion was dated and the “absolutely devastating” quote was given to the newspaper – that Johnson wrote to the privileges committee:

One curious point here is that he refers to a previous letter to the committee of 12 August 2022 – which is four days after the date of the end procurement law advice, see:

This must mean that the decision to procure external legal advice preceded his letter of 12 August 2022, and so presumably that letter was also informed by the external advice obtained.

You will also see in this letter that Johnson says that “[i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” that he was “placing a copy of the legal opinion in the Library of the House and on the gov.uk website`’.

This is odd.

For as the expert in parliamentary procedure Alexander Horne points out:

There can be no good reason why the Opinion was not just submitted to the committee without publicity – especially if the content of the Opinion was genuinely “absolutely devastating”.

Johnson mentions that he is publishing the letter on the government website [i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” .

But these “ exceptional circumstances” are not particularised, and the committee itself is the means of “public and Parliamentary scrutiny”.

The only plausible explanation that fits the available information is that the Opinion was published on the government website so as to place media and public pressure on the privileges committee.

This would explain how the Opinion went from being finalised, the “absolutely devastating” quote being given to the media, the sending of the 2 September 2022 letter and the publication of the Opinion the same day:Given that publishing the Opinion would mean that legal professional privilege may have been waived (to the extent that the Opinion was covered by legal professional privilege in the first place), and given it would also mean that the Opinion would also not be covered by parliamentary privilege, the publication of the Opinion on the government website was a high-risk strategy.

The only explanation I can think for this is that the Opinion was commissioned by Johnson for the purpose of that publication.

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As this blog set out, the Opinion is not strong.

This is not just my view as a random legal blogger, but also that of the professor of public law at the University of Cambridge.

Indeed, there cannot be many weaker legal opinions that have ever been published.

That the Opinion was weak has now also been stated by the parliamentary committee itself, in a special report on the Opinion.

The committee in a mere six pages of its report refutes (and not just rebuts) the twenty-two page Opinion.

The committee’s report is, well, absolutely devastating.

The language is extraordinarily strong for such a report – for example, at paragraph 12:

“We consider this concern to be wholly misplaced and itself misleading.”

At paragraph 6, the committee says the Opinion“is founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law”.

And so on.

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Caption: legal commentators reading the committee report

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The committee, which is being advised by a former Lord Justice of Appeal who was president of the tribunal service (who can be expected to know about procedural fairness), could not have been more brutal about the merits of the Opinion.

And this is a committee which has Conservative members as well as opposition members.

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This whole exercise is rather strange.

This blogpost, like the previous blogpost, has not named the lawyers – and this is because we simply do not know what their respective instructions were.

And, as such, it would be unfair to name them in this context.

This is not just libel-speak – and there is nothing in this post which should make you think worse of any of the lawyers involved.

A lawyer is only as good as their instructions.

Instead the criticism should be for Johnson, who appears to have sought to bring media and public pressure to bear on the privileges committee by using public money to procure an opinion to be placed on the government’s website.

There was no obvious reason why this was a matter for the taxpayer, and there is no good reason why the Opinion was published on gov.uk on 2 September 2022.

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Perhaps the committee will find there was no contempt.

Perhaps the matter will just go away.

Perhaps there will be a political feeling that the former Prime Minister has been punished enough.

Who knows.

But what is certain is that there should be fresh consideration of the procurement of and publication of legal opinions by ministers (of any party).

Something rather irregular happened here, and it is not the sort of thing which should happen again.

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Making the Accession Council inaccessible

26th September 2022

You may recall this blog had a positive post about the broadcasting of the Accession Council:

That detailed post even featured in the House of Commons briefing on the accession of the King:

The broadcasting of the full Accession Council was a boon for the public understanding of the constitution of the United Kingdom, I said.

I even ventured that that further Privy Council meetings could now be televised.

This could be done easily, it seemed to me, as such broadcasts would be in the gift of the King.

Oh what a fool I was.

Of course this welcome shift to transparency would not last.

As reported by the Guardian:

(Highlighting added.)

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It was too good to be true.

The new King is still the same old Prince of Wales who insisted that his notes to ministers be outside the scope of the Freedom of Information Act.

Prince Hal has not become Henry V.

This is not a bright new morning of royal openness, but a resumption of the tight controls of information that we are used to.

This is such a shame.

The crown had an opportunity to throw obscure parts of our constitution into public gaze, to balance the usual focus on Westminster and Downing Street, to reveal the hidden wiring.

The King had an opportunity to use his control of what can be broadcast to show his engagement with process and practice.

And now, the cloak is too pulled over again.

Oh well, it was good while it lasted.

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The magical thinking of Donald Trump

22nd September 2022

A theme of this blog is that law is akin to magic, and that law and lore have a good deal in common.

For example:

But the comparison is only made as a-kind-of-analogy.

I never thought that when writing about law in modern times I would come across actual magical thinking.

I was wrong.

Consider this:

Here the proposition is not that Trump could unilaterally, by some form of words, either in writing or said aloud, change the classification of documents.

The proposition is that by thinking a thing, with that thought having no other trace or manifestation, then a classification of a document can change.

This would mean that the legal consequences for other people with reference to that document would be different, even though there was no record of Trump’s thoughts, because Trump had thought one thing or another.

And, presumably, Trump can classify the document by thoughts alone, as well as de-classify it.

Perhaps he could even in turns classify and de-classify a document every few moments, and nobody would ever know.

It would be an extraordinary thing – even supernatural and paranormal.

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Of course, what is (probably) going on is that Trump is resorting to the only defence he thinks he has left, which accords with the evidence.

There is no actual evidence of de-classification, then his explanation needs to deal with that absence.

There is also the implicit point that if he accepts these are documents which he “de-classified” then they were not “planted” – as that defence would seem to contradict his purported “de-classification”.

It is all very odd.

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Stepping back, it would seem Trump has realised that he is in serious legal jeopardy.

If anyone else had been found with such classified documents without authority or lawful excuse then that person would no doubt have been arrested and charged, convicted and imprisoned.

The only difference here is whether the law applies to Trump as it applies to others.

Or is there a legal privilege for Trump?

This is a hard question for the rule of law: is there one law (or lack of law) for him and one for others?

Perhaps following his exercise in magical thinking, Trump would accept criminal liability if enough people think that he is guilty?

Or perhaps not: one suspects he would want to rely on real-world law and procedure, where things are properly written down and recorded.

For that is the thing about those who want to be above the law: they wish to dispense with legal formalities when it suits them, but they certainly want the protection of legal formalities when it protects them.

 

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The end of an era? The death of Elizabeth II and the problem of periodisation

19th September 2022

True Historians, of course, do not like periodisation.

The very notion that there can be start-dates and end-dates to periods of study are, for True Historians, anathema, heretical, and blasphemous.

Or worse.

Even dates like 1066, or 1914, or 1945 will, for a True Historian, not be anything other than something which draws us away from understanding continuities.

There is no start-date and end-date which does not mask, for a True Historian, lots of things which carried on as before, and which does not interrupt some existing trend.

But.

For rest of us mere mortals, who will never become True Historians, periodisation is a useful device – as long as not too much reliance is placed on it.

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For a good part of English history, periodisation was simple: it followed the reigns of the monarchs.

Dates likes 1485 and 1603 and 1714 were good dates to start and end a course of study or the content of a text book.

But after 1714 the dates began to slip, and the periods did not match the reigns of monarchs.

Dates like 1815 or 1865 began to be the bookends of courses and textbooks, and for the twentieth century (at least for the United Kingdom) the dates of the world wars were convenient marker dates.

But what of the post-war period?

If 1945 is seen as the start of a period of British history, when should that period end?

1990, with the end of the Cold War and the fall of Thatcher?

1997, with the coming of New Labour?

2001, with 9/11?

2010, with the going of New Labour?

2016, with the Brexit referendum?

2020, with the actual UK departure from the European Union?

Or is there a case to be made for 2022, a year where, in a single week, we had a change of Prime Minister and a change of monarch?

And a year in which Putin and Russia so obviously overreached themselves in Ukraine.

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From a constitutionalist perspective, the start-dates and end-dates are perhaps different.

For a constitutionalist, the key dates may be: 1660 (the restoration); 1688-89 (the revolution); 1707 (the union between England and Scotland); 1714 (the succession of George I); 1745-46 (with the final failure of the disputed succession); 1801 (the union of Great Britain and Ireland); 1828-32 (the collapse of the “ancien regime” with Roman Catholic emancipation and the Great Reform Act); 1867 (the extension of the vote to some working men); 1911 (the defeat of the House of Lords with the Parliament Act); 1918 (votes for women); 1922 (the Irish Free State, effectively ending the United Kingdom of Great Britain and Ireland); and 1936 (the forced abdication).

Each one of these dates, which signal some re-configuration of our constitutional arrangements, would be a good start-date or end-date for a work of modern constitutional history.

(There are other possible dates too – but that paragraph was already long enough.)

But what more recent date would be a marker for our constitutional history?

Some would have said 1973, with our entry into the European Communities; or 2020, with our departure from the Communities’ successor, the European Union.

Others would say the various legislative changes of the first Tony Blair administration, with devolution and the Human Rights Act.

And a strong case can be made for the Good Friday Agreement.

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My own view, for what it is worth, is that – from a constitutionalist perspective – the marker date is yet to come.

The next marker date in our constitutional history will be when there is a border poll in Northern Ireland, especially if there is a vote for unification.

(Or it may be a pro-independence referendum vote in Scotland, if that is sooner.)

For that will bring to an end the constitutional history of the entity which came into its current form in 1922, with the Irish Free State.

And a good historical periodisation is always around a century-long.

(Shh, don’t tell True Historians.)

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If so, then today’s funeral provided a fascinating and highly significant piece of evidence:

This tweet may well be one of the most important things ever tweeted in respect of our constitutional arrangements.

For the Sinn Féin First Minister (Designate) of Northern Ireland to write in such terms means that the sensibilities and concerns of the Unionist community are not only being acknowledged but respected.

And the more the Unionists are made to feel more comfortable, the more likely there will be a united Ireland.

That tweet was huge.

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As this blog has averred before, the great achievement of Elizabeth II was to take a throne which seemed precarious, and to hand it on with more security to her successor.

And so for her monument, you could look around today at the state funeral.

Of course, in a way, with the death of Elizabeth II it can be said in general terms that the twentieth century came to an end.

She was our last major link with a good part of the twentieth century: somebody born the same year as Marilyn Monroe who died in the era of TikTok:

Somebody who served in uniform in World War II, and whose first Prime Minister – Winston Churchill – was born in 1874, lived on so that her last Prime Minister was born a century later, in 1975.

When she died, Elizabeth provided the sort of continuity at which any True Historian will clap and cheer.

She ensured that the end of her reign was not to be a start-date or end-date.

And so our start-dates or end-dates, at least from a constitutionalist perspective, will not include 2022, and so we will have to be different dates instead.

One suspects Elizabeth II would be happy with that.

 

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What is wrong with the Crown

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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The blocked route of Republicanism

15th September 2022

The route to a republic currently starts at about London Bridge, follows the Thames and crosses Lambeth Bridge, before ending at Westminster Hall.

And if you tried today to follow that route, you would find it is blocked almost every inch of the way.

This is, of course, the line for people wanting to see the late Queen lying-in-state.

Not all the people in that queue are monarchists – their motives may be varied.

But the one thing the queue evidences is the deep hold the monarchy currently has on the attention and time of a significant group of the British people.

You may not like it, but it is there – and if you care for practical politics and realistic constitutional reform – it is something you are going to work with.

A non-trivial group of people are attached to the institution of the monarchy.

And because of this fact, it is not possible to see any clear pathway from here to a republic.

Even if something happens which means the throne becomes occupied by someone undesirable, history points to that occupant being ejected (as in 1688 and 1936) rather than the monarchy itself being threatened.

And if an heir to throne becomes unacceptable that too can be dealt with by regulating succession – and a good part of the constitutional law of the United Kingdom is to do with the regulation of succession.

Perhaps things could fundamentally change, and the monarchy discredits itself somehow.

Perhaps the monarchs themselves decide that they no longer want to have such a role.

Perhaps.

But, absent any such fundamental change, it is difficult to see why any politician or political party would ever want to campaign on the issue.

And, after our collective experience in or since 2016, it is highly unlikely any government would put the matter to a referendum.

So like the Jacobites who eventually came to terms with the Georges, republicans are – again – going to have reluctantly accept that the Crown is not going away.

Of course, there are big questions to be asked about the powers of the Crown.

And no sensible person can defend the hereditary principle on its own terms – though it has the happy indirect effect of keeping populists from being head of state.

As a non-militant republican I would prefer things to be different, but I suspect I would not join a long queue to campaign for it.

And if all the militant republicans did form a queue, also starting around London Bridge, it probably would not get much further than Traitor’s Gate.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.