Category: The Crown

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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Why the broadcast of the Accession Council was informative and significant

12th September 2022

The Accession Council was broadcast live on Saturday morning.

That broadcast was a boon for the public understanding of the constitution of the United Kingdom, showing the sort of things that are usually hidden from public view.

It was fascinating watching for anyone interested in the nature of our constitutional arrangements.

You can watch it here – and I will explain below why various aspects of it were important and/or interesting:

https://www.youtube.com/watch?v=aKci6iKET2Q

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The Accession Council is a configuration of the Privy Council.

David Torrance, who has written an outstanding briefing for the House of Commons library on what happens when a monarch dies, explains the background of the Accession Council:

That there is now no longer a strict statutory requirement for an Accession Council should not mislead you into thinking that the council meeting was mere ceremony and its content mumbo-jumbo.

There was actually a point to a good part of it, even if that point was constitutional rather than strictly legal(istic).

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For example, take the oath in respect of the Church of Scotland.

(Here note I am neither Scottish nor a Scots lawyer, and so please nudge me in the comments below if I put my foot wrong.)

The taking of the oath is a legal requirement, under the Protestant Religion and Presbyterian Church Act of 1707.

Under this Act, it is provided among other things:

“And Lastly That after the decease of her present Majesty (whom God long preserve) [Anne] the Sovereign succeeding to her in the Royal Government of the Kingdom of Great Britain shall in all time comeing at his or her accession to the Crown Swear and Subscribe that they shall inviolably maintain and preserve the foresaid Settlement of the true Protestant Religion with the Government Worship Discipline Right and Priviledges of this Church as above established by the Laws of this Kingdom in prosecution of the Claim of Right”.

This is an Act not of the Parliament at Westminster but of the Parliament of Scotland.

Indeed, it appears to be the legislation passed just before that parliament voted for union with England:

The Act was passed by the Scottish Parliament at a time when the then Queen looked as if she was to be succeeded by distant relatives – and the Scottish Parliament was presumably anxious to ensure that its position would be protected by the new monarch.

The 1707 Act has (as far as I can tell) a unique legal and constitutional status.

The Westminster Parliament cannot repeal this Act if there is a regency in place.

Under the Regency Act of 1707:

“The Regent shall not have power to assent to any Bill for changing the order of succession to the Crown or for repealing or altering an Act of the fifth year of the reign of Queen Anne made in Scotland entitled “An Act for Securing the Protestant Religion and Presbyterian Church Government.””

I am not aware of any other statutory provision which prevents the Royal Assent of an otherwise passed Bill – and it is a deft device to achieve a measure of entrenchment.

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Now let us turn to seals.

It is a mark of our age that it is difficult not to think of aquatic animals when the word “seal” is used:

Unhelpful.

But if we can put out pinniped friends aside for a moment, seals were – and are – important.

Part of the business of the Accession Council was for the new king to approve the various seals still used in government business.

These seals convert documents that have no legal standing and effect into instruments that can have just as much legal standing and effect as any Act of Parliament.

Seals are an important part of the business of government.

The current seals have the name, image and chosen inscription of the late Queen:

(From Wikipedia.)

There was no legal requirement for Charles to confirm that the current seals could continue to be used, for the Succession to the Crown Act 1707 provides:

“And be it further enacted by the Authority aforesaid That the Great Seal of Great Britain the Privy Seal Privy Signet and all other Publick Seals in being at the Time of the Demise of Her Majesty Her Heirs or Successors shall continue and be made use of as the respective Seals of the Successor until such Successor shall give Order to the contrary”.

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There was also a confirmation that Charles will surrender the (considerable) revenues of the Crown Estate in return for the Sovereign Grant.

And today (the Monday after the Saturday) there has already been a statutory instrument amending this provision of 2011:

With this one:

Given the amounts involved – the annual revenue of the Royal Estate is about half a billion pounds – one can appreciate why the government would want to act quickly to ensure the legal framework was up-to-date.

It should be noted that Charles referred to the “tradition” of surrendering the revenue of the Royal Estate, as if it were a voluntary act which he just happens to wishes to continue with, rather than being a firm legal obligation.

This “tradition” dates back to George III and it is unthinkable that the surrender would ever be rescinded, but it is an element of our uncodified constitution which owes more perhaps to a “good King’s theory of the constitution” rather than the more well known “good chap’s”.

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Charles also approved legislation for a bank holiday for the State Funeral.

This approval was legally required under the Banking and Financial Dealings Act 1971:

The usual statutory bank holidays are listed in schedule 1 to that Act – and so for England and Wales they are:

The eagle-eyed among you will see that neither Christmas Day nor Good Friday are statutory bank holidays.

This is because they are bank holidays at common law, a point which is recognised by this wonderful sub-section that follows the one just quoted:

This means the King and his Privy Council has the legal power, by proclamation, to make it like Christmas everyday.

 

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The broadcast of a meeting of the Privy Council itself – even if this special one – is illuminating.

The business is done directly between the monarch and the ministers attending, seeking approval for various measures.

A famous such meeting took place three years ago:

Note the “Note” at the bottom.

The business of the council is conducted standing up:

Orders in Council can cover many things, ranging from important constitutional acts to trivial-seeming amendments of existing royal charters.

They are, however, a system of making law parallel to the legislative process at Westminster.

Many would be surprised at what can be given legal effect outwith the Westminster Parliament.

The meetings take place wherever the monarch happens to be – and, as Torrence explains in another outstanding briefing, the Queen would engage with ministers on the measures to be approved:

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The public broadcast of the Accession Council was a decision that must have been made some time ago.

It is difficult to believe that the filming was arranged at speed after the death of the Queen.

There seems to be no inherent reason why they cannot be filmed and broadcast – and so it is presumably in the gift of the King as and when other Privy Council meetings are filmed and broadcast.

Perhaps future meetings will also now be filmed and broadcast – showing Charles engaging face-to-face with government ministers on a range of issues.

This may be good – or bad – for Charles and/or the ministers involved.

If so, they would be an interesting complement to the filming and broadcast of parliamentary proceedings.

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The business of the Accession Council included matters that went back to the Stuarts.

The content included the monarch’s promise to protect of the Church of Scotland; the monarch’s tradition of surrendering the revenues of the Crown; the practical need to carry on the Monarch’s government; and the proclamation of a public holiday.

As the historian Judy Stephenson noted, the Accession Meeting was in the round a reminder of various agreements and compromises over centuries that have shaped our current constitutional arrangements:

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The decision to film and broadcast the Accession Council was a wise and informative one.

A whole sector of the usually hidden constitution was opened to the public gaze – and it was informative, and not just for constitution geeks.

It was also a reminder of the key distinction between the Crown and those who have served the Crown.

The King on one side, and – roped-off – some familiar faces on the other:

The Accession Council meeting should now be required viewing for history and law students, among others.

And let us hope that further Privy Council meeting are now televised.

There are few events in which varied elements of our constitution, from different times, are brought together in one place and at one time.

I wish it could be possible to have such insights every day.

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The Queen

8th September 2022

While we wait for news from Balmoral – from which the last reports were of the Queen’s ill-health – it is good to remind ourselves of what an extraordinary thing she achieved in securing the future of the monarchy.

It was not inevitable that the United Kingdom would stay, well, a kingdom.

When she was young the Crown was weak.

The United Kingdom over which her grandfather ruled – that of Great Britain and Ireland – had already been re-confingured in the years before her birth.

Her uncle had been forced from the throne in circumstances which showed the relative weakness of the king to the political class.

Monarchies and royal families throughout Europe were being removed and exiled.

The Empire was being decolonised and it was not certain the “Commonwealth” would take off as an idea.

The politics of the 1930s and 1940s in Europe and elsewhere often pushed in radical and extreme directions.

Any young royal in the Europe of the 1930s and 1940s would have seen the monarchy as precarious.

Even by her coronation in 1953, it was not obvious that the Crown would survive.

Yes, with hindsight, it looks as if it would not have been any other way.

But the devices of what became known as “the Firm” – the use of the extended royal family and the “balcony” royals, and the clever use of the media and imagery – were not as familiar as they once were.

Looking at the challenge before her in 1952/3 must have been daunting.

The monarchy now seems secure for at least another generation or two.

It will slim down, with more empty space on the balcony, but there seems no prospect of there being a republic in the next twenty or so years.

Even if her successors are unimpressive (or worse) the consequences will be likely to be dealt with within a monarchical framework, rather than a huge constitutional upheaval that would make Brexit seem like a jubilee street party.

Of course, the kingdom itself may be reconfigured further – with Irish unification and Scottish independence.

But something called a United Kingdom will survive – even if it will be akin to a pop band on the nostalgia circuit with only two of its original members.

A wise historian friend once said that while the Queen survives the twentieth century has not yet fully ended.

Such has been her longevity – and how with hindsight the period since 1952 seems all as one coherent piece – the sheer amount of change (and lack of change) can be overlooked.

She took a monarchy that was not in good form in the inter-war years and ensured that it has lasted to deal with the problems of the mid twenty-first century.

Even liberal republicans (of which I am one) can respect what she has achieved, even if a different model of state still would be preferred.

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The comments policy is here.