Independent body should advise Queen on constitutional matters, says former Supreme Court judge

Lord Sumption says monarch lacks ‘legitimate source of advice’

(AFP/Getty)

A body independent of government ministers should be set up to advise the Queen on matters of constitutional significance, a former Supreme Court judge has suggested.

Lord Sumption, who served on the UK’s top court until 2018, said the monarch lacked a “legitimate source of advice”, and that senior public servants could fill the current void.

His comments – delivered at a lecture hosted by BBC Parliament – follow last year’s explosive Supreme Court judgment that ruled Boris Johnson’s five-week suspension of parliament was unlawful.

Speaking at King’s College London, the former justice also warned the prime minister against hostility to the judiciary, the BBC and the civil service as No 10 prepares to launch a constitution and democracy review.

Referring to the prorogation ruling, Lord Sumption said the Queen was not in “any realistic sense advised at all”, due to the convention that she is bound to comply with the wishes of ministers who have the confidence of the Commons.

“All this nonsense about deceiving the Queen was a little absurd,” he said. “The convention does not go ‘your majesty would you awfully mind’, the conversation goes like this: ‘The cabinet has decided to do this, sign here’. That’s the reality of it.”

But, he added: “It seems to me highly desirable that there should be some independent body which should be in a position to advise her on the understanding that she will normally be bound to accept their advice.

“Now, there’s a number of possible options, but my own view is that there ought to be a constitutional committee of the Privy Council that would have a judicial element, but a minority judicial element.

“It would consist of experienced public servants for the most part whose function it would be to give the monarch advice, independently of her ministers, on actions that ministers were asking to take.”

As it stands, members of the Privy Council, consisting of ministers, provide advice to the Queen that she is bound constitutionally to follow.

Before parliament was suspended, the monarch held a meeting at Balmoral castle with members of the council, including Commons leader Jacob Rees-Mogg, where she signed off the government’s order, despite protests from the opposition leaders to withhold her consent.

Lord Sumption added: “But what is a more general problem about this – in the prorogation case the courts intervened. Essentially the reason that they intervened is that there are some conventions that cannot be regarded as optional because in their absence we simply cease to be a political democracy at all. And the prorogation decision raised a convention of that kind.

“This gives rise to a quite serious problem in that the Queen has no legitimate source of advice on the constitutional propriety of what she is being asked to do by her ministers, other than the ministers themselves, who obviously have their own position on the subject.”

In the wake of Mr Johnson’s decisive election victory in December, the government outlined plans to reform the UK’s constitution, democratic institutions and legal system, but provided little detail of the remit of a proposed commission.

The Tory manifesto for the election vowed to ensure that judicial review “is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means”.

The plan has raised fears that Downing Street could extract revenge following both the prorogation case and the Supreme Court verdict that ruled Theresa May had to seek the consent of parliament to invoke Article 50 in 2017.