Category: The Union, Northern Ireland, Scotland, Wales

The crown at a constitutional crossroads – my Prospect column this month

5th May 2021

My column at Prospect magazine this month is about the monarchy.

Please click here to read it – and leave any comments below.

In particular, I would be interested in any views on my broad point that – regardless of the succession – the monarchy is likely to have to change anyway, as the current model was very much a response to the specific (and challenging) conditions of the mid-twentieth century.

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Cameron, May, Johnson – who, in constitutional terms, is the worst prime minister?

15th April 2021

Future students of history and politics will no doubt have to answer essay questions about who was the worst prime minister out of David Cameron, Theresa May and Boris Johnson.

And there is also no doubt there will be those who will aver that, say, Margaret Thatcher or Tony Blair was worse than any of those three.

Over on Twitter the comedian and writer David Schnieder offered his view:

 

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From a constitutionalist (and liberal) perspective, there is a case to be made against each of the three.

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Johnson, for example, switched the government’s policy on Northern Ireland and Brexit, negotiated and signed the Northern Irish protocol, and rapidly passed it into legislation without any scrutiny – and we are currently watching the fallout from this.

One can also put against Johnson that it was his switch from supporting Cameron and his political ambition that led May to adopting the hardline positions that she did on Brexit.

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It was May, however, who was responsible for the ‘red lines’ that meant that the United Kingdom would leave the single market and customs union, which in turn necessitated there having to be elaborate provisions in respect of Northern Ireland.

She is also the one that triggered Article 50 prematurely and without a plan, and she even sought to make this momentous notification without an act of parliament.

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But.

Cameron is the most culpable.

However bad May and Johnson have been, they were and are merely dealing (badly) with a situation created by Cameron.

Cameron staked the entire future of the United Kingdom on a single turn of pitch-and-toss – a simple yes/no referendum – assuming that, of course, he would win.

No considerations – let alone plans – were made for the contingency of the votes being for leave.

It was perhaps the most irresponsible domestic political act one can imagine in peacetime.

A ‘macro’ decision that, in turn, led to the bad ‘micro’ decisions of May and Johnson as they sought to give effect to the referendum result.

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And so Schneider may be wrong on this, at least in terms of what the United Kingdom is going through constitutionally.

Looking at it in terms of other policies, one perhaps could take a different view.

But I suspect future generations will be aghast and bewildered at Cameron’s folly.

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The judges are only the ‘enemies of the people’ when it suits the government

14th April 2021

For the government. and its political and media supporters, the judiciary are the ‘enemies of the people’.

The view is that that it is no business of activist judges to interfere with what ‘the people’ want.

It is a view that led the London government to oppose the supreme court determining the two Miller cases.

It is also a view that informs the current attempts by the government to limit judicial review and the scope of the human rights act – to the claps and cheers of many who (frankly) should know better.

But it is a shallow view, adopted out of convenience and partisanship.

For, when the political boot is on a different constitutional foot, the government suddenly values an independent judiciary being able to assess the constitutional propriety of a measure:

See Joshua Rozenburg’s detailed piece here.

Also note the response of the London government’s former chief legal official:

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From a political perspective, this referral prompts mixed feelings.

My political view is that a Scottish parliament can and should be co-equal with the Westminster parliament – as the legislatures in Canada and Australia are, even if nominally under the same head of state.

As such, it is frustrating to see the emphatically supported view of the Scottish parliament potentially stymied in this way.

But a political view is not always the same as a constitutionalist perspective.

And under the current constitutional arrangements of the United Kingdom, this is a question that can be referred to the supreme court – and as such there is nothing unconstitutional about the London government doing so.

(Whether those should be the constitutional arrangements is a different question.)

It is sheer hypocrisy – and there is not other word – for the London government, and its political and media supporters, to pick-and-choose when the supreme court gets to determine constitutional questions.

Either the supreme court is a constitutional court or it is not a constitutional court.

And it should not be regarded as only a constitutional court when the London government wants to face down Edinburgh, Cardiff, or Belfast.

A constitutional court is not and should not be regarded as an imperial court.

***

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The Good Friday Agreement and Brexit

12th April 2021

Before the Brexit referendum, one British politician made an emphatic statement about the impact of Brexit on the position of Northern Ireland:

‘Relations between London and Dublin are by far the warmest they have ever been since Irish independence, and the people of Northern Ireland are among the beneficiaries of that.

‘For that, the credit goes to a whole succession of British and Irish leaders, and to the tireless diplomacy of the United States. Yet it has also partly been facilitated by both countries being part of a common framework.

‘If the UK were not in the EU, the impact on such close relations, though hard to quantify, would certainly not be positive.

‘The Good Friday Agreement was based on the assumption that the two countries would be in the EU together, and the various cross-border institutions it established are built on that.

‘Hundreds of millions of euros of European funds are currently diverted into the border region through a special peace programme.

‘Most important of all, the open border between Northern Ireland and the Republic would be called into question.’

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The key sentence of that passage bears repeating:

‘The Good Friday Agreement was based on the assumption that the two countries would be in the EU together, and the various cross-border institutions it established are built on that.’

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Who was this politician?

Was it some starry-eyed Europhile writing in some left-wing magazine?

No, it was former Conservative foreign secretary William Hague writing in the Daily Telegraph on 9th May 2016.

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Hague’s warning was not the only one – and he was also not the only one to make the connection between the European Union and the Good Friday Agreement.

The then Taoiseach Enda Kenny said, just days before the referendum:

‘When the Good Friday agreement was concluded 18 years ago, the detail of the negotiations and the agreement itself were brought about as a result of intensive engagement by the British and Irish governments in conjunction with the Northern Irish political parties.

‘But often underestimated was the international support for the process, not least that of the European Union.’

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And if one looks at the Good Friday Agreement itself, you will see the following recital:

‘The British and Irish governments […]

‘Wishing to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union’

The agreement also expressly provided that the north-south ministerial council ‘consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework. Arrangements to be made to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings’.

Indeed, there are eight mentions of the European Union in the agreement.

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Of course, an agreement made in 1998 did not and could not have anticipated the United Kingdom voting to leave the European Union in 2016 and then leaving in 2020.

But that shared membership of the European Union was a presupposition cannot be sensibly denied.

As Hague also points out about Gibraltar, shared membership of the European Union was a handy and effective solution to tricky cross-border issues.

The European Union was a useful geo-political work-around for many otherwise insoluble problems. 

And so be departing from the European Union, such advantages of membership were removed.

This should not have been a shock.

Hague set this out plainly in the Brexit-supporting Telegraph, and the Taoiseach also put his name to articles explicitly stating this.

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Brexit, of course, is not in and by itself a contradiction of the Good Friday Agreement – in that the Good Friday Agreement still is in force now that the United Kingdom has departed the European Union.

In the first Miller case, the supreme court was asked to rule against the Article 50 notification, and they stated in respect of the legislation implementing that agreement:

‘In our view, this important provision, which arose out of the Belfast [Good Friday] Agreement, gave the people of Northern Ireland the right to determine whether to remain part of the United Kingdom or to become part of a united Ireland.

‘It neither regulated any other change in the constitutional status of Northern Ireland nor required the consent of a majority of the people of Northern Ireland to the withdrawal of the United Kingdom from the European Union.’

As such continued shared membership of the European Union may well have been a presupposition of the Good Friday – but it was not (as a lawyer may say) a condition precedent.

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The Good Friday Agreement is, in terms of its practical importance, perhaps the most significant single constitutional instrument in the politics of the United Kingdom.

It is of far more practical importance than, say, Magna Carta.

It shapes what is – and is not – both politically permissible and politically possible.

It largely explains the curiously elaborate – and, for some, counter-intuitive – nature of Brexit in respect of Northern Ireland.

It meant that the clean absolute break with the European Union sought by many Brexit supporters did not happen.

The Irish border was to be kept open.

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But the Good Friday Agreement does not only protect the nationalist community, it also should protect the unionist community.

And the Brexit arrangements – with a trade barrier effectively down the Irish Sea – is seen as much as an affront to the unionists as a visible land border infrastructure would have been an affront to the nationalists.  

There is no easy answer to this problem – perhaps there is no answer, easy or hard.

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It took membership of the European Union to make the Belfast Agreement possible.

Perhaps there is no alternative geo-political workaround to take its place.

Had the United Kingdom stayed within the single market and the customs union, even if as a matter of legal form it would not technically be a member of the European Union, then perhaps this problem could have been averted.

But the fateful decision by then prime minister Theresa May in the months after the Brexit Referendum that Brexit would mean leaving the single market and the customs union meant that problems in respect of the position of Northern Ireland would become stark.

And as nods to the articles by Hague and Kenny show, it cannot be averred that the United Kingdom government was not warned.

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Prince Philip, the monarchy, and the precariousness of crowns

10th April 2021

One of the more wonderful rabbit-holes on the internet is to start with one Wikipedia page and to then click and click and to see where it takes you.

And so yesterday, as an exercise, I started with the page of Prince Philip, whose death has been announced, and clicked to find out more about his royal and noble ancestors.

Going down the direct father-to-father line by itself takes you back to Elimar I, Count of Oldenburg (1040-1112), via such splendid fellows as these:

 

 


 

According to Wikipedia, at least, these are the direct forefathers of Philip and thereby of princes Charles, William, and George.

Of course, few will be certain that all this is the case as a matter of historical and biological fact – we are going on secondary historical sources at best.

And, of course, you can back click through the mothers instead, or a combination of fathers and mothers, and so on.

But two things become obvious, whichever way you click.

First, some of the noble and royal families of Europe have been around as noble and royal families for a very long time.

And second, those noble and royal families have often adapted and evolved, as has the nature of lordship and kingship – but sometimes those families do not adapt and do not survive, which is also in the nature of lordship and kingship.

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When we get to Philip’s paternal grandfather we have a seventeen-year old second son of a king of Denmark who was somehow elected king of Greece in 1863.

Then Philip’s father – the fourth son of this almost-accidental king of Greece – was, in turn, exiled, court-martialled and then banished from Greece, and was to live in Vichy France and to die in Monaco.

Previous posts on this blog (here and here) have emphasised that for Queen Elizabeth the crown is precarious.

Her grandfather – who was king when she was born – had been crowned king of Great Britain and Ireland, as well as emperor of India and the other dominions.

But as a child and teenager she saw her uncle forced to abdicate, the United Kingdom forced re-invent itself with Irish independence, and the forced conversion of the empire into a commonwealth.

One suspects that the Queen does not take the crown for granted.

The same, one suspects, was also true of Philip.

Within the previous two generations of his own family, crowns had almost-literally come and gone, and he spent his childhood being quickly moved from one place to another.

Elsewhere in Europe, royal reigns and noble privileges and monarchical systems were abruptly coming to an end, and overseas empires were collapsing.

When Elizabeth became Queen in 1952, there was no particular reason to think that the United Kingdom or the crown itself was especially stable or sustainable.

And it is perhaps only with hindsight that it now looks ‘inevitable’ that both the United Kingdom and crown have continued to the current day.

But against the history of the seventy years before 1952, such stability and continuity is unusual in European terms rather than the norm.

And a good part of that is because the slow and quiet reinvention of the crown under Elizabeth and Philip – which was not perfect, but it did mean that the crown and the royal family continued generally to have high public support and largely avoided partisan political controversy.

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The next generation of the royal family, as with the politicians currently with the charge of governing the United Kingdom, do not – and cannot – have this same sense of anxious fragility as the generation of the Queen and her late husband.

And as such, things will be taken for – and as – granted.

For them, turmoil and reversals are the exception – rather than the norm.

But history is often not like that for more than one or two generations in succession.

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Do ‘Appeals for Calm’ work?

8th April 2021

Another evening of disturbances in Northern Ireland.

And so another round of ‘appeals for calm’.

Of course: such a call is the responsible thing to do – and nothing in this post should be taken to gainsay this.

But do such appeals actually work?

Does this – almost ritualistic – reflexive speech act ever have the intended effect?

And if so, how?

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A cynic may contest that one function of ‘appealing for calm’ is to just give something ‘community leaders’ something to say and do – a gesture as empty and meaningless as ‘thoughts and prayers’.

As such there could almost be a circular definition – a ‘community leader’ is the person who ‘appeals for calm’, and ‘appealing for calm’, is what a ‘community leader’ does – thereby a ‘community leader appealing for calm’ is almost a tautology.

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But such cynicism may be misplaced, for there appear to be many examples of appeals for calm that have had efficacy:

And from my home city of Birmingham:

https://twitter.com/ArghZombies/status/1379923278739992576

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So there are historical instances where the ‘appeal for calm’ seems to have had the intended political and social effect – though of course there may be other features present.

But the ‘appeal for calm’ has another important function.

And this is that it will be significant when the expected speech act is not made by a particular individual.

Here we have an example from just three months ago:

Silence as a signal.

As so often with language and politics, it can be more important when certain words and phrases are not used than when they are.

This is true not only for formal texts such as laws, but also for rhetorical acts in certain situations.

An ‘appeal for calm’ thereby might or might not work – but a failure or obvious refusal to ‘appeal for calm’ can have unwelcome consequences.

Appealing for calm is therefore an important piece of political behaviour – both for what it can achieve and also for what may happen if the appeal is not made.

Words matter, but so does silence.

***

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Four months after the end of the transition arrangements there is still no clear view of the future relationship between the United Kingdom and the European Union

4th April 2021

The United Kingdom ceased to be a member of the European Union over fourteen months ago, and the transition arrangements came to an end on 31st December 2020.

Regardless of whether you take the fourteen-month or the four-month period as the true duration so far of Brexit, what is not coming into view is the shape of the future relationship.

My own view – which is pretty much a minority view, as it has been since the dawn of Brexit – is that the United Kingdom and European Union would be best having a close association agreement, where the the legal form would be that the United Kingdom was not a member of the European Union but the substance would be that we would continue to be part of the single market and the customs union.

Issues of representation, consultation and mutual influence would be dealt with by dedicated EU+UK institutions – and such consensual and sustainable institutions would be the answer to the charge that the European Union would be imposing law and policy on an independent United Kingdom.

But this middle way position is still not in sight, and many still see the Brexit debate in the leave/remain binary.

As far as I am aware, no front-rank politician has yet set out a positive vision of the institutional, law and policy framework of the relationship of a post-Brexit United Kingdom and the European Union.

The government is still in its toy-room of gesture politics.

The official opposition is silent.

Those in favour of the United Kingdom becoming a member (again) of the European Union are still – wrongly, in my view, for reasons set out here – emphasising rejoining the European Union, rather than making a positive case from scratch, that is a case without depending on our previous membership.

Those remainers who accept Brexit in principle are saying little about how the United Kingdom should engage

Those in favour of Brexit in principle are still, to use the famous phrase, the dog that caught the car.

There is drift instead of where post-Brexit development of medium- to long-term policy should be.

The removal of Trump from the American presidency and the ongoing pandemic are further disorientating features.

In the absence of constructive policy formulation, we have from ministers shouty confrontation and culture wars instead.

But as was averred on the cover of a Fat Boy Slim album, they are already number one, so why should they try harder?

The politics of Brexit and beyond have still not settled.

Maybe they will not settle for some time.

Maybe, even, we are still in the early years of a Boris Johnson government – or that he will be replaced by someone even less suited to building a constructive relationship with the European Union.

And, to be even-handed, there is little sign in Brussels and other European Union capitals that they too are seeking a new model relationship with the United Kingdom.

If anything, there is a defensive-rearguard urge just to keep the current withdrawal and relationship agreements in place, let alone think about the future.

And the impending Scottish elections and the politics of Ireland and Northern Ireland may even mean there be soon no United Kingdom to have a relationship with the European Union.

All up in the air, still.

So four months on, there is almost no indication of what the long-term post-Brexit relationship will be like.

Volatility may be the new norm.

Brace, brace.

***

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Union Jacks being placed indoors in politicians’ offices is a constitutional distress signal

23rd March 2021

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“They’re selling hippy wigs in Woolworths.”

– overheard in Camden Town, 1969

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In thirty-five years of reading and writing about the constitutional history of the United Kingdom I have never given a second thought to the Union Jack (or Union Flag).

To the extent I thought about flags at all, I just had a vague notion that they were things which people in other countries had – like the fact they put their country names on postage stamps while the Royal Mail does not.

It was not so much that I felt strongly against a flag – I just did not really think about it at all.

And now it seems to be the most potent political issue of our age.

It is all very strange.

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Let us start with the law providing that the Union Jack is our national flag.

There is no law providing the Union Jack is our national flag.

Indeed, it seems there was doubt that the Union Jack was our national flag until the early twentieth century.

Here is a revealing exchange between three earls in the house of lords in 1908:

From that exchange we can infer that in the Victorian period the Union Jack was not regarded widely as the national flag – else there would be no need for such a debate and clarification in 1908.

So it may not even be Victorian nostalgia – but something of which has only been a big thing for a hundred years or so.

Another ‘invention of tradition’ as some historians would say.

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There are two things, however, which one must know about the Union Jack.

The first is that some people will have Very Strong Opinions on whether it is called a Union Jack or a Union Flag – though those three earls of the realm were quite at ease calling it a jack.

The second is that the same people are also likely to have Very Strong Opinions on which way up the flag should be flown.

This blog does not have such strong opinions.

But the one thing which seems to be overlooked in the current heated political controversy about flags is that, well, they are supposed to be flown outside – on land or at sea.

That is the point of a flag, if you think about it.

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To have political arguments about flags in indoor rooms seems, on this basis, to be rather weird.

It is like having a row about closed umbrellas.

Our ancestors did not give us much guidance about the Union Jacks being indoors as political props, as it may not have occurred to them that a flag would ever be used for such a purpose.

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That said, there is some trace of flags in our legislation.

In schedule 1 of the grandly titled Town and Country Planning (Control of Advertisements) (England) Regulations 2007, there is this provision for things that do not need consent:

But nothing about flags inside.

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This lack of any formal recognition of a national flag is not surprising in those often casual arrangement that we describe as the constitution of the United Kingdom.

A thing can be – and presumably cease to be – a national flag without any legislative intervention.

A thing can become official in an unofficial way.

Whether this relaxed approach will continue in this age of hyper-partisanship and performative nationalism is unlikely.

One can quite imagine a new act of parliament ‘enshrining’ the Union Jack as our national flag, with ‘tough new offences’ to ‘crack down’ on disrespect.

One wonders how we managed so far.

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The timing of this phenomenon is telling.

By reason of Brexit, there is a non-trivial likelihood that there will be Irish unification and maybe also Scottish independence in the next few years.

So there is a real risk that two of the crosses on the Union Jack will soon not be there if the flag were ever to be adjusted for accuracy.

(Though one can quite imagine England carrying on with the Union Jack even with the loss of Northern Ireland and Scotland – like those pop bands that still tour with just one original member.)

And although it is easy to mock this flag-showery, it is not without political purchase, as my wise Financial Times colleague Robert Shrimsley avers:

But taking this sensible warning seriously, there still seems symbolism in this, well, symbolism.

Lore tells us that a Union Jack flown upside down was a sign of distress.

It is almost as if the current prevalence of indoor Union Jacks – upside down or otherwise – is itself a distress signal – and one for the future of the Union.

Brace, brace.

***

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The Clown and the Constitution

21st March 2021

Sometimes the usual superlatives do not seem enough – ‘brilliant’, ‘excellent’, ‘outstanding’ do not give justice to a thing.

So all I can aver is that the article ‘The clown king: how Boris Johnson made it by playing the fool’ by Edward Docx is perhaps best piece of contemporary political observation and analysis I have come across for a long time.

If you have not read it, go and read it now – else the rest of this post will make little sense.

And if you have read it, go and read it again.

This is because there is no way that a summary of that article by me will be adequate.

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Everything Docx says that touches on certain law and policy issues over the last few years is true.

Brexit is indeed ‘an act of symbolism at the expense of everything else.’

The lack of seriousness about law as an illustration of the the lack of seriousness generally:  ‘the teetering unicycle of Johnsonian buffoonery – A-levels, school meals, foreign health workers and more. A country of tumbling catastrophes. Trampolining absurdities. Go to work. Don’t go to work. A country proroguing parliament illegally here, trying to break international law there.’

The dislocation between the heady claims of political language and the mundane realities of political substance: ‘we became a country in which there was only the mock heroic – a “world beating” country that would “strain every sinew” and give “cast-iron guarantees” while bungling its plans and breaking its promises. A country “ready to take off its Clark Kent spectacles” and act “as the supercharged champion” of X, Y, Z. A country on stilts – pretending that we had a test and trace system that was head and shoulders above the rest of the world.’

The nature of the campaign for Brexit and the insincerity of Boris Johnson’s role: ‘the likes of Iain Duncan Smith, David Davis, Steve Baker, Nigel Farage, Mark Francois, John Redwood, Gisela Stuart, Kate Hoey et al – were never more than a dim congregation of rude mechanicals. And what they required to win was someone who instinctively understood how to conduct a form of protracted public masque.’ 

And so on.

Docx’s depiction of the character and approach of the current prime minister is unmatched.

Falstaff, the Fool, the Clown, has indeed taken over as king.

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At the end of Docx’s article, however, he posits that there are hard challenges that cannot (easily) be avoided by the clowning prime minister:

‘The difficulty for the clown is that once truth and seriousness have been merrily shattered, they cannot be put back together and served up anew. Or, to put it another way, the buffoon who has just entertained the audience by smashing all the plates cannot now say that he proposes to use them to serve up a banquet in honour of himself becoming a wise and honest king. Everyone can see: the plates are all in pieces on the floor.’

One of these challenges is more policy than law – the many serious failures of the government United Kingdom in respect of the Covid pandemic.

Here Docx points out that Johnson is now seeking to tell a story so as to lift him out of any culpability:

‘Are we supposed to forget this legacy and “move on”? That is what Johnson is now tacitly suggesting. Like all storytellers, he knows the public remember endings, less so beginnings and seldom the middle. He did all he can, he says. He knows it’s not true, but that is what he is selling.’

Here Docx appears to be doubtful of his own plate-smashing analogy.

People may elect not to see the damage: Johnson can – and may well will – distract us by more plate-smashing: world-beating plate-crashing, no doubt.

The other challenge, however, is squarely constitutional.

And that is the future of the union.

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Docx rightly observes that there is a pending constitutional crunch: ‘the realm really is still falling apart. Johnson’s predicament could not be more starkly illuminated than by the next existential challenge he faces: to do with the very nature of the union of England, Scotland, Wales and Northern Ireland.’ 

Johnson’s predicament here affirms the truth of the old Hebrew proverb about the difference between a clever person and a wise person: a clever person can get out of situations that a wise person would not get into.

The lack of wisdom here, however, is not that just of Johnson.

The folly of the in/out referendum was that of David Cameron, and the infliction of a ‘hard Brexit’ (with the United Kingdom outside the European Union customs union and single market) was by Theresa May.

Wiser heads – who realised the precariousness and fragility of constitutional arrangements – would not have risked the future of the United Kingdom, as Cameron did, on one turn of pitch-and-toss.

Nor would they have insisted on an extreme form of Brexit in the first few months after the referendum, as May did.

Johnson was not responsible for either of those two calamitous decisions, which in turn have created what Docx rightly calls the ‘existential challenge’ of keeping the union together.

The fool may have become prime minister – but only after the two previous prime ministers had made the most foolish of decisions.

And given those foolish decisions – and their necessary implications for the position of Northern Ireland – then there is not a great deal that Johnson can do.

The clown has not so much taken over the stage: it is more that supposedly wiser rulers have left the stage to the clown alone.

And, of course, Johnson will approach the problem with his strategic dishonesty and tactical buffoonery – but, frankly, what else has he got?

The constitutional logic of the Brexit that was in place before he became prime minister will continue to unfold.

Slapping sticks is perhaps all that is left.

*

All this said: never underestimate the trickster.

A clever person may be the one who gets out of situations that a wise person would not have got into – but the clever person may still do so all the same.

And as Docx avers: ‘the clown is always in a deeper relationship with the audience than with his ostensible subject.’

The plates that may now smash will be as big as the union itself.

The United Kingdom of Great Britain and Northern Ireland may not last another few years in either form or substance.

But the clown-king may still be able to get away with it – and still be prime minister of whatever is left, with claps and cheers for more.

The audience may never see or care what damage is done in the meantime.

And this is not just because of the skills and talents of the clown-king but because of the stage we are now at in the story of Brexit and the United Kingdom – to use a phrase of Johnson’s earnest antonym as prime minister – there may be no real alternative.

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“Will it please you to see the epilogue, or to hear a Bergomask dance between two of our company?”

– Act V, Scene 1, A Midsummer Night’s Dream

 

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The contest between sovereignty and legitimacy – the dilemma for the Crown

10th March 2021

Yesterday the writer Reni Eddo-Lodge tweeted a brilliant observation about our constitutional and media arrangements:

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:

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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