Category: United Kingdom Law and Policy

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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***

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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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Policy and ambition – 1988 revisited

23rd September 2022

Once upon a time I was an Economics A-Level student, and that time was 1987 to 1989.

And I remember one day sitting watching the 1988 Budget given by Nigel Lawson, and it is an indication of how I was not like other A-Level students that this was very exciting.

I even remember writing out “Medium Term Financial Strategy” into my exercise book of quotations – perhaps the dullest book of quotations ever compiled – and sitting with the Times and Financial Times spread out on the living room carpet.

But most of all I remember the triumphalism.

Socialism and the post-war consensus was over: Thatcher and Lawson had re-written the economic rules, and our reward were to be good times that would never ever end.

And all this accorded with the theories taught on the Economics A-Level course.

It was all so easy – and one had to ask why had nobody ever done this before.

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But.

The 1988 boom ended with bust, as all booms tend to do.

This was not a sound financial strategy – either for the medium term or otherwise.

And Lawson and then Thatcher lost their jobs, and a recession occurred while I was at the university into which my Economics A-level result had helped me.

(Though it was not until around 2008 that I finally dropped my free market views, when it became obvious that – left to themselves – markets tended to disequilibrium – and implosion  – rather than to equilibrium.)

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I also remember Gordon Brown as Chancellor contending that there would be “no more boom and bust”.

This was a similar triumphalism to that of Thatcher and Lawson, but from another political party that believed they had cracked how to manage the economy.

And that triumphalism was also undermined by events.

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After a while, watching governments and politicians (and pundits) come and go, one can become unimpressed, if not cynical.

The not-a-budget announced today by new Chancellor Kwasi Kwarteng is certainly something that would have fascinated my 1988 Economics A-Level student self.

It is probably even a speech that my 1988 Economics A-Level student self could have given.

The statement is a simple application of some economic theories to the complicated world of real economic activity.

Perhaps it will work.

Perhaps Kwarteng will confound his critics.

Who knows?

Economics is not an exact science – and some would say economics is not a science at all.

Perhaps this engineered boom means that we can have economic good times for ever and ever.

But.

The messy nature of human affairs means that few ambitious plans work – and especially those which are accompanied by triumphalism, the claps and cheers of the easily impressed.

Policy, like law, is hard.

This is because policy, like law, has to deal with human behaviour in complex societies.

And if policy and law were really that simple to get right, our politicians would not keep on making so many mistakes.

“Brace, brace.”

(Which I really should have written down in my exercise book in 1988 instead.)

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Pragmatism, competence, policy, and law

20th September 2022

Day-to-day politics have returned, and there was an interesting admission from the Prime Minister:

The content of this admission is not, in and of itself, any surprise.

There will be no trade deal with the United States in the foreseeable future – indeed there may not even be trade negotiations for such an agreement.

But.

The surprise is that this is being openly admitted by any minister, let alone the Prime Minister.

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Other Brummie solicitors will be hating this:

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Of course, one reason for this admission may be tactics.

The United States can hardly use a trade deal as leverage in respect of their concerns over the Northern Irish Protocol if we say those Californian grapes are already sour.

You can see the point of such a tactic, even if you do not see any merit in it.

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Another recent deft government manoeuvre, which was not widely noticed, was the government not carrying through the nomination of the controversial Christopher Chope to the committees investigating the conduct of departed Prime Minister Boris Johnson:

A further tactical switch was the dropping of the attempt to repeal the Human Rights Act, which was going to take up a lot of parliamentary time and departmental resources and still get stuck in the House of Lords.

As this blog suggested, this dropping of the bill is likely to be replaced by smaller illiberal changes to other legislation, rather than through one big bang Act of Parliament.

And today also saw indications that the government’s commitments are weakening to “privatising” Channel 4 and the awful Online Safety Bill.

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Taking these incidents together, one could form the impression that the government is becoming more pragmatic.

If so, this would be a welcome to change to the bluster of the Johnson period, where unforced errors were freely made, and as loudly as possible.

But.

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Tactics, of course, are not the same as strategy – or overall tone.

Even when there are this micro-changes to the business of government and the process of legislation, the macro politics seem unchanged.

In particular, the “cake-ism” of the government’s Brexit policy – and of its promised tax policy.

The government is also maintaining the fiction that the Northern Irish Protocol bill is “necessary”.

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The new deputy Prime Minister Thérèse Coffey (who – disclosure – I happen to have known since university) was last week roundly and rightly mocked for her apparent new departmental guidance on the Oxford comma.

(The punctuation in the title of this post is deliberate.)

But perhaps more interesting from a policy perspective was what else was in that guidance:

This is sensible stuff for any minister in charge of a medium-sized or large department.

It should be the minimum standard required – but one suspects hyper-active and unfocused minsters have been trying to do everything and ending up doing nothing.

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Tactical improvements are of little use or value if the overall strategy is misconceived.

Neither Brexit nor solving the cost-of-living crisis will be “done” by the government’s current approach.

Avoiding easy mistakes will not be enough with the hard policy problems ahead.

That is also the minimum requirement of governance.

And it is a measure of how bad politics – and policy – have been that these simple changes are conspicuous enough to be welcomed.

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This blog said that it would give the new Prime Minister a clean slate – although some under the line thought this was too generous.

And it is still very early days: the Prime Minister has been office less than two weeks, and that has included a period of national mourning.

The early signs are that there may be marginal improvements.

But the big blundering is still there.

And although we should always remember that there is no one way of governing well, we should note there are many ways of governing badly.

This should be obvious to capable politicians, Elizabeth Truss and Thérèse Coffey.

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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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On why this break from day-to-day political activity may be a Good Thing

14th September 2022

Over at his substack, the estimable political journalist Adam Bienkov sets out why he thinks it is a bad thing that normal politics have been suspended.

There is a great deal of force in what Bienkov says.

But.

I want to put forward an alternative view.

The run of day-to-day politics has certainly been paused, but politics operates on a number of levels.

And at a deeper level, what is happening at the moment is politics of a more fundamental kind.

We are reminding ourselves of the institutions of the state and the arrangements of our constitutional order – and the role of the Crown as the most important organising principle in our political system.

This is a good thing for our polity, and it should be done from time to time.

Yes: the timing could be better.

But the timing will never be perfect – there will always be some crisis or controversy.

A period of such reflection is not necessarily a conservative thing.

It may well be that the contemplation of our monarchy – about what it has been and what it may become – will lead people to consider or accept change.

Such thoughts are rare in the hustle-bustle of daily politics.

And so in this way I do not see what is currently happening as the political life of the nation being put on hold, but a continuation of politics by other means.

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The sentiment above is a general one – and it would be applicable at any time.

But there is also a particular reason why the current pause in day-to-day politics is to be welcomed.

Our current politics is characterised by the “3 Ps” – populism, polarisation, and post-truth.

This is especially the case after the downfall of Boris Johnson and the rise to power of Elizabeth Truss after a leadership campaign in which the candidates necessarily had to appeal to partisan supporters.

A break from – and a brake on – such a manic political trend is healthy.

And given the circumstances of this pause – marking the death of someone who, on any view, was a committed public servant – the contrast with certain recent leading politicians is stark.

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We have an energy crisis and a cost-of-living crisis, and we have a war in Europe and an ongoing climate emergency.

All of these need to be addressed, all of them are urgent.

But we may also be having a broader political crisis – a crisis of legitimacy and accountability.

And, if so, that also needs addressing, for that also would be urgent.

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Reminding ourselves that there are other parts of the constitution than what Johnson misused or disregarded is a good thing.

Such moments should be rare in any political system, but they should happen from time to time.

And this is not necessarily a monarchist notion – for what it is worth, I am a non-militant republican, opposed to the hereditary principle.

Normal political activity will resume soon enough.

But this short time out from day-to-day politics is good for us, and it good for our politics.

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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.

*

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”.

*

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”.

*

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.

 

*

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:

*

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.

*

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:

*

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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A King

9th September 2022

By late yesterday afternoon, like many people I was braced for the news of the death of the Queen.

The well-connected were messaging the less well-connected saying that she had already died, and that it would be announced at 6pm, and then 6.30pm.

And even without such messages, it was increasingly obvious that the news was not going to be good.

But on the television they had to keep up the show of the news not being confirmed, though if you watched and listened carefully there were tells.

And so when the news was announced, the death was not a surprise.

But.

When Huw Edwards immediately referred to “the King” I jolted.

A King.

A word that is strange to type on a blog about current events.

A King.

We now have a King.

*

Of course, the transition from a Queen to a King presents no big constitutional issue.

The Sovereignty of the, well, sovereign is as continuous as the stars that shine.

As quoted in this outstanding briefing by the House of Commons Library on the death of the monarch:

“Most flags around the country fly at half-mast (subject to the new monarch’s wishes), except the Royal Standard, which is “never flown at half mast, even after the death of a monarch, as there is always a Sovereign on the throne”.”

The person of the monarch changes, but the concept continues.

*

The abstract notion of a “king” (or “queen”) or “lord” or “chief” is from our species’ earliest endeavours at organised society.

With a face-to-face community, with a pecking order, the most dominant individual can prevail without any need for a label.

But once there are too many individuals for a leader to dominate personally – in my view, about Dunbar’s number – those with power have to use concepts which we would regard as rules and commands that have to be obeyed.

And in this way dominance becomes a matter of status.

That individual has to be obeyed, not (just) because they are personally dominant but because they also are “king” (or “queen”) or “lord” or “chief” .

The status is separate and distinct from the individual.

It is like that Thackeray sketch that has featured on this blog before:

*

The Crown carries on, as it is distinct from any individual.

Some words will change because we have a male monarch instead of a female one.

Queen’s Counsel became King’s Counsel; the Queen’s Peace becomes the King’s Peace; and so on.

And when the throne goes from Charles to William, not even these labels will change.

We notice only these changes because, unusually, the Crown is not going from one man to another.

*

The Crown is a concept – perhaps a super-concept – in our constitutional, political and legal arrangements.

The Crown is the theoretical ultimate basis of most public power in the United Kingdom: for Parliament, for the Courts, and for the Executive.

Because Elizabeth was on the throne for so long, it became easy to identify her personally with the Crown.

And now we have a King – and so we can perhaps get a better sense than before of the distinction between the status and the individual.

*

I happen to be a non-militant republican, who would prefer the selection of the head of state not to be based on the hereditary principle.

The hereditary principle is a difficult principle to defend, and the only thing to be said for it is that it prevents the election of crude populists to be the head of state.

But that is, in one way, an issue about succession.

Succession – selection – is not the only issue about the Crown.

The powers of the Crown, and how the Crown binds the elements of the constitution together both theoretically and practically, are points wider than the question of succession and selection.

It we were to become a republic, should the office of President be otherwise identical to the Crown?

Or should the head of state in a republic have a different configuration in the constitution?

One argument for the Crown is that its value is not so much about what power it has – but what power it prevents others from having.

But would that still work with an elected head of state?

*

The debate about the powers of the Crown can now be uncoupled from a discussion about the undoubted merits of the late Queen.

It is a topic which we can think about and talk about in ways different from before.

Because we now have a King.

A King.

It still feels really strange to type.

***

Comments Policy

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.

The comments policy is here.