The Independent guide to the UK constitution: The monarchy

The erosion of the power of the monarchy has been crucial to the evolution of our unwritten constitution - yet the question of what is the Sovereign’s proper role in British life remains controversial

Cahal Milmo@cahalmilmo
Friday 12 June 2015 14:56
The Queen and the Duke of Edinburgh at the State Opening of Parliament
The Queen and the Duke of Edinburgh at the State Opening of Parliament

Like his father before him and every other member of the House of Windsor with an expectation of becoming monarch, the young Prince George will one day be asked to ponder the musings of the son of a Somerset banker on the peculiar institution he is ordained to eventually lead.

In 1867, Walter Bagehot, the great essayist and long-serving editor of The Economist, suggested in his work The English Constitution that there was no point in explaining the monarchy as a rational part of British society. It has been a set text for little kings and queens in waiting ever since.

Bagehot observed that the role served by the Sovereign since leaving behind the era when the day job consisted of donning armour and eviscerating rivals was to float above the filthy business of wielding power and instead embody a sense of “mystery” – a unifying figurehead gifted by history and surrounded by ritual.

He wrote: “The mystic reverence, the religious allegiance, which are essential to a true monarchy, are imaginative sentiments that no legislature can manufacture in any people. You might as well adopt a father as make a monarchy.”

The Victorian polemicist was writing for an age when the monarch was also an empress and Britain a superpower. But he put his finger on a defining characteristic of royalty in the United Kingdom as it made the transition to its modern status as the cherry on the very British cake of constitutional monarchy: that of survival by persuading Britons of its utility as much as its regality.

Bagehot suggested that this compact involved the monarch imparting a sort of wisdom of the age through a triumvirate of residual “rights”. The Sovereign, he wrote, enjoyed “the right to be consulted, the right to encourage, the right to warn”, and in exercising these rights would win the affection of his or her subjects.

In Britain’s genteel pyramid of power, the monarch has swapped political power for the expectation of consultation by those – namely the prime minister and the prime minister’s cabinet – who exercise that power on his or her behalf.

In more recent years, however, this role has been presented differently. The Royal Household has created a dual-purpose monarch who not only wears the crown but is also a fount of “soft power”, a bulwark against the more venal forces in modern life. Alongside the Queen’s duties as Head of State (opening Parliament, meeting prime ministers, making overseas visits), Britain now has a “Head of Nation”.

As the Official Website of the British Monarchy puts it: “As ‘Head of Nation’, The Queen’s role is less formal, but no less important for the social and cultural functions it fulfills.

“These include: providing a focus for national identity, unity and pride; giving a sense of stability and continuity; recognising success, achievement and excellence; and supporting service to others.”

It is an eccentrically British feature of the unwritten constitution that the overarching philosophy of one of its cornerstones (a head of state elevated by birth rather than merit) is to be found not in ancient manuscripts but in the writings of a motley crew of journalists and screenwriters. Just as Prince George, like his father, grandfather and great-grandmother before him, will pore over Bagehot for guidance, so too will he owe the latest definition of royalty’s constitutional purpose to a leading comedy writer.

Sir Antony Jay, whose gifts to the nation include co-creating Yes, Prime Minister, is credited with first outlining the twin notions of Head of State and Head of Nation in a book published alongside his defining 1990s documentary on the role of the Queen, Elizabeth R. The monarch’s duties, he wrote, “can be done well, or adequately, or badly, or not done at all. They are the ones concerned with behaviour, values and standards; the ones which earn the respect, loyalty and pride of the people.”

It is no accident that, for the past 150 years or so, definitions of the monarch’s constitutional role have been borrowed magpie-like from diviners of popular sentiment such as comedians and hacks. For without the common touch, an institution that depends on securing both the deference and the affection of its subjects runs the risk of losing their consent. And, if nothing else, monarchy in Britain is a game of consent.

Since Charles I paid the ultimate price for insisting on clinging on to the powers of an absolute monarch when his subjects were no longer content to grant them, British sovereigns have shown with varying degrees of deftness an ability to cede power and yet remain the seat of all authority.

This is done by dint of “royal prerogative” – a slightly slippery notion defined by the constitutional expert Albert Dicey as the rump of the Crown’s “original authority” that remains outside Parliament’s gift but is in practice surrendered to the Government of the day.

The present Queen therefore governs, but only according to the rules or conventions laid down by an elected Parliament and its Government. It is only through Elizabeth II’s signature or assent that laws come into existence – but by way of a constitutional quid pro quo she only signs what her ministers ask her to.

This is the result of 300 years or so of progressive clipping of royal wings through legislation, beginning with the 1689 Bill of Rights, which laid out basic civil rights and established the supremacy of Parliament in passing laws, as well as stripping the monarch of the power to maintain an army in peacetime without MPs’ consent.

The Act of Settlement 12 years later, which continues to ensure that no Catholic can sit on the throne and only recently saw its provision for male primogeniture expunged from the statute book, also further restricted the powers of the Crown. Among its clauses was a provision that judges held office on the basis of their own good conduct rather than at the direct say-so of the Sovereign, thereby establishing the independence of the judiciary.

This gradual ceding of power in return for retaining influence has allowed the monarchy to defeat the republican logic which was outlined by Anglo-American revolutionary Thomas Paine in 1776 (and which has resulted in most other liberal democracies functioning without a royal head of state). In his pamphlet Common Sense, Paine wrote: “There is something exceedingly ridiculous in the composition of monarchy. One of the strongest natural proofs of the folly of the hereditary right in kings is that nature disapproves it, otherwise she would not so frequently turn it into ridicule by giving mankind an ass for a lion.”

At least since Bagehot, the retort of the system to such criticism (which even the great Victorian apologist for monarchy admitted had some rational basis) has been that a royal head of state creates a unifying rather than a divisive figurehead.

Vernon Bogdanor, the eminent constitutional expert, wrote that heredity “settles beyond argument the crucial argument of who is to be head of state, and places the position beyond political competition”.

Britons would broadly seem to agree – support for a republic in the UK has consistently bumped along at between 15 and 25 per cent in polls for several decades. Support for the monarchy stood at nearly 80 per cent for the Queen’s Diamond Jubilee in 2012.

Yet a monarchy that exists by consent is nonetheless fragile and not without inconsistencies. Although the Queen has no direct political power (and has been punctilious in avoiding any hint of party allegiance), the laws of the land none the less mean she theoretically remains able to exercise the royal prerogative contrary to the advice of her prime minister or the cabinet.

As such, she has the power to prorogue or close a parliamentary session at her own will, to appoint whomsoever she pleases as prime minister and even refuse royal assent to a Bill (though the last time this happened was in 1704 under Queen Anne). It is only the 1,000-year-old web of convention and precedent – and Her Majesty’s personal restraint – which means such a scenario does not occur.

The hotch-potch nature of the constitution is shown by the fact that the Sovereign retains all manner of unusual rights secured by her forebears and never claimed back. For example, she can to this day by law demand the surrender of any sturgeon caught or landed in British waters, or force men into the Royal Navy or dig for salpetre.

Britain’s most eminent and legal minds have long struggled to define the royal prerogative and indeed which powers it continues to confer on both the monarch and her ministers. Attempts to bring at least the majority of these powers under parliamentary control by putting them on the statute book have long been mooted and equally long postponed because to do so would leave MPs and peers with no time to debate the more pressing matter of the legislation of the day.

The result is that there is little prospect of the monarchy, with all its carefully choreographed mystique of ritual and ancient influence, being unstitched from the workings of the British state.

It is, at least, a feat of endurance admired the world over. When King Farouk of Egypt was removed from his throne in 1952 he observed that “soon there will be only five kings left”. The list consisted of the kings of spades, diamonds, hearts and clubs – and the King of England.

Key texts: The monarchy

A | From The Bill of Rights (1689): “The... Lords Spiritual and Temporal and Commons... declare: • That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

• That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

• That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;

• That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal.”

B | From ‘The English Constitution’ by Walter Bagehot (1867):

“The sovereign has, under a constitutional monarchy such as ours, three rights – the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others. He would find that his having no others would enable him to use these with singular effect...”

C | From ‘Commentaries on the Laws of England’, by Sir William Blackstone (1765)

“By the word prerogative we usually understand that special pre-eminence which the King hath, over and above all other persons, and out of the ordinary course of common law, in right of his regal dignity ... ”

D | From A V Dicey, ‘Introduction to the Study of the Law of the Constitution’ (10th edition, 1959):

“The prerogative is the name of the remaining portion of the Crown’s original authority ... Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of the prerogative.”

E | From ‘The Governance of Britain: Review of the Executive Royal Prerogative Powers: Final Report’, by the Ministry of Justice (2009):

This review includes this summary of the Crown or Monarch’s constitutional or personal prerogatives:

“Appointment and removal of Ministers; appointment of Prime Minister; power to dismiss government; power to summon, prorogue and dissolve Parliament; assent to legislation; the appointment of privy counsellors; granting of honours, decorations, arms and regulating matters of precedence ... ; a power to appoint judges in a residual category of posts which are not statutory and other holders of public office where that office is non-statutory; a power to legislate under the prerogative by Order in Council or by letters patent in a few residual areas, such as Orders in Council for British Overseas Territories; grant of special leave to appeal from certain non-UK courts to the Privy Council; may require the personal services of subjects in case of imminent danger...”

The report also lists a number of “archaic prerogative powers”, while conceding that “it is unclear whether some of these ... continue to exist”. They include: “guardianship of infants and those suffering certain mental disorders; right to bona vacantia; right to sturgeon, (wild and unmarked) swans and whales as casual revenue; right to wreck as casual revenue; right to construct and supervise harbours; by prerogative right the Crown is prima facie the owner of all land covered by the narrow seas adjoining the coast... ; right to waifs & strays; right to impress men into the Royal Navy; right to mint coinage; right to mine precious metals (Royal Mines); also to dig for saltpetre...”

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