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- Herausgeber: Biteback Publishing
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
The commonly held belief that the king or queen is a mere ornament of the constitution could not be further from reality. The turbulent past decade has tested the British constitution like never before, and Brexit, the illegal proroguing of Parliament and the near death of Boris Johnson while in office have demonstrated the often misunderstood but crucial role the sovereign plays in ensuring stability in our political system. The king or queen holds a unique set of powers that enable them to act as the defender of our constitution, a duty they perform not through the active use of power but by constitutional authority. The mere threat of action by the sovereign is often all that is needed to get the political machine back on track and avoid crisis. Taking us on a fascinating journey through centuries of British political history, focusing on the monarch's powers to appoint and dismiss a Prime Minister, grant a dissolution of Parliament and refuse assent to legislation, On His Majesty's Service examines how past monarchs have avoided constitutional crisis and reveals the hidden hand of the monarchy in the smooth running of the state, shattering the accepted political truism that the king reigns but does not rule. These are the king's prerogative powers, and this is their story.
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In memoriam John Hopkins, John Maples and Jeremy Heywood. For teaching me to pay attention to the man behind the curtain.
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‘To understand how we’re governed, and hence the power of the Prime Minister, you have to understand the power of the Crown. It’s like the Trinity: God the Father is the Queen – she’s just there and nobody knows very much about her; God the son is the Prime Minister – who exercises all the patronage and has all the real power; and God the Holy Ghost is the Crown – the Royal Prerogative – and the Crown is the state-within-a-state, surrounded by barbed wire and covered in secrecy.’
Tony Benn
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Contents
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Author’s Note
Throughout this work, the terms ‘king’ and ‘queen’ are used interchangeably unless the context suggests otherwise. When lowercase they refer to the monarch in more general terms, whilst King or Queen denotes a particular regnant monarch. ‘Sovereign’ and ‘monarch’ are used in a similar manner without distinction. Likewise, the term ‘crown’ is used to refer to the institution, whether in its capacity as an individual or collective, of which the monarch is the personal, human manifestation. Similarly, terms of gender will be used in an interchangeable way, as will the singular and plural as appropriate. The aim is to describe an entity free from grammatical distinction.xii
Prologue
‘All my life people have been telling me, “You can’t do that.” And I’ve always proven them wrong.’
If you had to sum up Boris Johnson’s world view in a single phrase, this would surely be it. A bold statement uttered in a time of stress to Geoffrey Cox, who was Attorney General at the time, it contained a world of meaning for those who were privy to the public life of this most polarising of Prime Ministers. To Johnson it simply explained the phenomenal success he had enjoyed in his life, which had brought him to the threshold of greatness. Yet for those who surrounded him, it was the echo of his doom. For the tragedy that lay at the heart of the Johnson story was that the closer to the summit he progressed, the less freedom of action he would enjoy – discovering far too late that Downing Street would be a prison from which he would long to escape.
I first had the pleasure of meeting this most fascinating of characters in the spring of 2004, when I was engaged in the quixotic quest to impeach Tony Blair over his actions in the Iraq War. Such endeavours naturally ensured that I met most of the ‘characters’ present in the House of Commons, not least amongst them the xivHonourable Member for Henley. But it was not until that November that I received my first insight into his character, an insight which has stayed with me to this day. Addressing the Horatian Society of Lincoln’s Inn two days after his dismissal from the shadow Cabinet, Johnson entertained us all with his wit and knowledge of the poetry of Horace, casting into a cold shade those academic speakers who sought to follow him. What was most significant, however, was that during his performance Johnson openly identified himself with Mercury – the messenger of the gods and the guide of the dead to the underworld – admitting there was a resemblance between himself and the deity.
What struck me most about this at the time was not the hubris in his allusion to being like a god but the fact he had chosen to identify himself with the Roman aspect of Mercury and not the more common Greek identity of Hermes. At first, I thought this was merely because Horace, as a Roman writing in Latin rather than Greek, had identified himself with Mercury, which explained Johnson’s later-day emulation. But as I pondered this further, I wondered if there was something more to it than that? Could the answer to Johnson be found in the ancient world rather than the modern?
Two things stand out in Johnson’s choice of divine patron that would have parallels with his premiership. The first has to do with the nature of Roman religion around the time of Horace. Unlike their Greek counterparts, the Roman religion was not based on concepts of divine grace but rather on a contractual partnership between man and gods. It was ritualistic in form, with little to no moralistic element. So long as the ceremonies were observed correctly, there was no obligation on a Roman to think or act in any moral way. Second, Mercury was not a primary god but rather a servant of the gods. Far from being a master of communication, xvhe was rather a conveyor of messages from others, most notably Jupiter, the king of the gods. Mercury served a higher power and was not the directing force of the cosmos.
Interesting observations to consider as we seek to understand the forces at play during Johnson’s premiership, for he was confronted by the realities of the British constitution in a more direct way than any of his immediate predecessors were. In examining the actions of his time in office, we see the hidden hand of the monarchy in the smooth running of our governmental systems and the way in which the monarch’s influence ensures our Prime Ministers do not breach our constitutional settlement. At certain key moments when Johnson attempted to get his own way, he found that he could not achieve his ends. A higher power prevented it, for he was but a servant to a force greater than himself.
Johnson entered office in a more precarious position than any of his predecessors since James Callaghan in 1976. His party held no majority and was dependent on the support of the DUP to pass its legislative agenda. Theresa May’s attempts to secure an agreement for the UK’s exit from the European Union had not only split the Conservative Party in two but had created the most hostile environment in Westminster since 1912, dissolving the bonds of trust between the Commons and the executive. Johnson had promised to ‘Get Brexit Done’; Brexit deal or no Brexit deal, the UK would leave the EU on 31 October. If he failed, his premiership would be over in three months. His team was determined this would not happen and so they looked for ways to achieve the impossible. Every trick in the book was considered and dismissed, save one: prorogation. The ending of the parliamentary session meant the possibility that the government could frustrate its opponents and regain control of the parliamentary timetable, which May had lost.xvi
The plan was simple. In retrospect, too simple.
Prorogation would last five weeks, from 9 September to 14 October. Then, the new Queen’s Speech would be presented, giving the government control of the agenda for a further couple of days. If no agreement was reached by the time of the European Council meeting on 17 October, a no-deal Brexit would be inevitable, and Parliament would have only five working days before prorogation to prevent Johnson from pursuing a no-deal Brexit. As prorogation was considered to be a ‘non-justiciable’ (not capable of being decided by legal principles or by a court of law) process, Johnson and his team were quietly confident that the courts could not interfere, thus preventing any challenge to their policy. The plan appeared to be foolproof. Events would prove all these assumptions to be somewhat wide of the mark.
The reaction to the plan was swift. The implications began to dawn on courtiers, civil servants and politicians, many of whom first heard the news whilst enjoying their summer holidays. Of central importance were Mark Sedwill, the Cabinet Secretary, Sir Edward Young, the Queen’s private secretary, and Peter Hill, the principal private secretary to the Prime Minister, who were all concerned that the monarch may have been politicised amid a national crisis. Palace officials were furious that No. 10 had attempted to bounce them with a decision made whilst the Queen was in Scotland. There had been no warning or briefing provided by Downing Street, leading to concerns that the Queen would not be fully informed as to the actions she was being asked to approve. Not since the nadir of Margaret Thatcher’s premiership had relations been so strained. Exercising the monarch’s right to be informed, the palace sought its own legal advice, which suggested that although the issue was potentially non-justiciable, the request placed the Queen in a very xviidifficult position by forcing her to act on legally dubious advice from the Prime Minister. Reluctantly, the palace provided the Queen’s consent but let No. 10 and the Cabinet Office know they were far from happy. We can only imagine how events would have turned out had the palace’s legal advice stated the process was illegal. Royal intervention had been avoided by the narrowest of margins, and the Prince of Wales and Duke of Cambridge let it be known that the monarch’s reaction would be very different in future reigns.
The Privy Council approved prorogation on 28 August, causing a tidal wave of anger in Westminster ahead of Parliament’s return on 3 September. In response, a coalition of the disaffected from across the House came together, under the leadership of Dominic Grieve, Oliver Letwin and Hilary Benn, to introduce a bill to frustrate the government’s actions. This was a move that enjoyed the very public support of the Speaker, John Bercow, who assisted the rebels in their cause. Known as the Benn Act, the legislation stated that if the House of Commons had not consented to either a Withdrawal Agreement or no deal by 19 October, the Prime Minister would be compelled to seek an extension of the withdrawal date to 31 January. Progress of the legislation was swift, with majorities in both Houses being formed as outraged Conservatives joined forces with the opposition to get the measure on the statute books before prorogation.
The reaction in Downing Street was vitriolic. Johnson took his revenge on the colleagues that had voted in support of the bill by revoking the whip from twenty-one Conservative MPs and destroying his fragile majority in the process. By removing no deal from the table, Johnson felt that Parliament was compelling him to accept a deal that was not in the national interest. This could not be allowed. Johnson looked for ways in which to frustrate Parliament’s actions. He gave serious consideration to blocking royal assent to xviiithe bill and asked Cox to explore whether he could advise the Queen not to give royal assent and to provide him with a legal opinion that could buttress his actions. Not since the reign of Queen Anne had a Prime Minister contemplated such action, but nor had they faced such a complete loss of control of the Commons. The government could no longer get its way, as the Commons insisted on frustrating the policy of the executive. An example needed to be made that the administration would not simply abrogate its functions to a chamber that lacked the mechanisms for directing the machinery of the state.
Johnson was keen on the idea, which had support within the wider legal community, but Cox was less enthused with the proposal for two primary reasons. The first was that it would drag the Queen into a controversy that could threaten the political neutrality of the monarchy itself. The second was that such a radical act could only antagonise Parliament, further leading to a complete collapse of our political system. How the Commons would react to such a naked use of royal power was simply unknown. Given the electoral maths, it was almost certain that the government would lose a confidence vote, further weakening the UK’s negotiating position with the EU. These concerns were reflected in the response of the palace. The Queen’s advisers doubted that the Prime Minister could compel the Queen to refuse assent, given the lack of support enjoyed by the administration in the Commons. The word leaked out that the Queen would refuse such a request, ending the debate within Downing Street with a heavy finality. Johnson had been told it could not be done, and he had to accept it. The Benn Act received royal assent on 9 September.
Johnson’s frustrations mounted further following the passage of the Benn Act. He faced the reality that he had lost control of xixthe Commons and could not break the impasse, as the Fixed-Term Parliaments Act prevented him from calling an election. This legislation had been introduced by the coalition government to regulate the UK’s election cycle to a set five-year period. The only way an early election could take place now was for either the government to suffer a defeat on a confidence motion or else for two-thirds of the Commons to vote to call an election. For Johnson to achieve either result he needed the support of the opposition, as he lacked the votes needed to secure passage of the required motion. For their part, the Labour Party and the other opposition parties had no interest in assisting the Prime Minister given their fears over a no-deal Brexit. An election was off the table for now and Johnson once again found he could not get his own way. An ironic position to be in, given the fact his predecessors could have relied on the monarch’s ability to dissolve Parliament in similar circumstances.
Attention now turned to the courts as the government’s attempts to prorogue Parliament were challenged across the UK, leading to the Supreme Court agreeing to hear the case. On 24 September, the court savaged the government’s position by not only stating that the issue was indeed justiciable but that the Prime Minister had acted unlawfully in advising the Queen to prorogue Parliament for such a considerable period of time in the midst of a national crisis. Whilst many in the Cabinet and legal profession saw the judgment as flawed and politically motivated, ignoring as it did historical precedent and political motivation, they still concluded it was justified by the Prime Minister’s behaviour. Our constitution relies heavily on conventions that outline accepted behaviours by our politicians, but the Johnson administration was breaching those conventions to such a degree that the court had no option but to intervene in an area of activity that was historically out of bounds to judicial oversight. xxThe result was that Parliament was found to still be sitting and that the Prime Minister was exposed as someone who sought to act illegally. Johnson was left with no option but to call the Queen and offer an unreserved apology for his actions in the lead-up to the prorogation.
Johnson’s stock was falling fast with the palace and word leaked out that Charles and William were furious with how the Queen had been treated and were less than impressed with the Prime Minister’s actions. The withdrawal of this wider royal support would make its impact felt shortly afterwards. The deadline of 19 October approached, when the Benn Act would compel Johnson to seek an extension to the Brexit deadline, and civil servants feared the Prime Minister would trigger a constitutional crisis as he had let it be known he did not consider himself bound by the Act and would simply ignore it. Cox and Richard Keen, the Scottish Advocate General, were deployed to tell Johnson he had no option but to send a letter requesting an extension. He simply had to do it. Outraged by the thought, Johnson raged at his staff and the meeting broke up, leading to further concerns as to the PM’s ability to govern the country.
Dominic Cummings called a meeting for the morning of 4 October to discuss ways in which Johnson could circumvent the Benn Act with limited involvement by officials. To frustrate this, officials pressed for the inclusion of James Eadie, leading counsel to the government, and Helen MacNamara, the deputy Cabinet Secretary, who in Mark Sedwill’s absence was the most senior civil servant. The meeting proved heated from the start. Johnson made it clear he would not send the letter to the EU. Faced with such a blatant statement of intent from Johnson, MacNamara had no xxichoice but to inform him the civil service could not support him and would down tools if he proceeded in such a fashion.
Speaking bluntly, she told the turbulent premier and his principal aide, ‘The police don’t work for you in that situation, Dom, they work for me. They work for us. It’s not your building. These aren’t your people. The police work for the Queen. We all work for the Queen.’ As silence fell in the wake of such a bold statement Eddie Lister, Johnson’s chief strategic adviser, asked the crucial question: ‘Can the Queen sack the Prime Minister?’ To this, MacNamara heatedly responded, ‘Do you really want us to have to advise the monarch that she is going to have to ask you to stand down?’
As a visibly shaken Johnson deflated in the wake of such a challenge, the meeting broke up. This most bombastic of premiers, the man who did not take no for an answer, found to his surprise that he served at Her Majesty’s pleasure. Jupiter had spoken and Mercury had little option but to listen. There was a moral curve to the universe after all. The letter was duly sent.
With a deadline extension agreed, the pressure on the Prime Minister began to ease, as he found that he now had the space to build the support for a general election, made possible by the passage of the Early Parliamentary General Election Act 2019. Johnson emerged triumphant at the polls and his opponents suffered a resounding defeat, ensuring that he could at last deliver Brexit as promised.
But no sooner had one crisis abated than another hove into view. Covid-19 broke upon our shores and the nation went into lockdown. On 27 March 2020, Johnson tested positive and went into isolation, informing the nation that his symptoms were mild. However, within nine days it was touch and go as to whether he xxiiwould live or die. This confronted the government with the problem of how to handle a political succession during a pandemic. As Johnson was taken to hospital on 6 April, he let Sedwill know that he wanted Dominic Raab to deputise for him during his convalescence and the arrangements were duly made. By Sunday, it was clear that Johnson was getting worse and that he now faced a 50-50 chance of survival, an outcome that was conveyed to his distressed partner.
On Monday, the Cabinet faced the very real possibility that the Prime Minister may die within hours and that the administration would lose not just its head but its lodestar, depriving the government of its driving force. As the country lacked a formal line of succession to the premiership in these circumstances, conversations were held at the highest levels to determine a way forward. The Queen was informed that she may need to act swiftly and a conference call with the Cabinet was arranged. Clearly in shock, the Cabinet deferred to Sedwill, who drew up a plan of action. Two options presented themselves. If the Prime Minister was ventilated, a stand-in leader would need to be approved. They would lead the government until such time as the Prime Minister recovered and resumed his duties. A letter to the Queen was drafted to this effect. If, however, Johnson fell into a coma or died, the Cabinet would have to formally vote on a candidate to be appointed Prime Minister ahead of a formal leadership contest in the Conservative Party. In this instance, the candidate should be someone who did not intend to seek the leadership themselves and would only hold office until a successor was elected. As an incapacitated Johnson could not resign due to being in a coma, the Queen would formally dismiss him from office ahead of appointing a new premier. It was duly agreed that Raab would assume office in these events, and he xxiiiprepared himself for the unthinkable. An address to camera was filmed informing the nation of the sad news and the incoming political succession whilst the Queen prepared to fulfil her duty. The event never came, however, as Johnson rallied that night and began his slow progress to recovery.
Amazingly, in the first three months of the Johnson premiership the power of the Queen had been wielded on several occasions to control the actions of this most wayward of Prime Ministers. Then, just a few months later, she was preparing to wield her power of dismissal in order to manage the prime ministerial succession.
In the following pages, we will come to explore the historical enormity of these actions and their place within British constitutional history – for this is the story of the royal prerogative.xxiv
PART I
2THE PREROGATIVE OF SOVEREIGNTY
1
The King’s Majesty
During the afternoon of 8 September 2022, the long reign of Queen Elizabeth II came to a gentle close as the woman who had been our monarch and the fixed point of our national life for seventy years breathed her last. Rushing to her bedside was the man who was transformed in that singular moment of apotheosis into our new king, assuming in an instant the burdens to which he had prepared for his whole life.1 As he absorbed the momentous news of his mother’s death, King Charles III became the forty-third sovereign of our country and head of the Commonwealth of Nations.*
He had succeeded to the greatest and most permanent office in the land, for he was now the head of state, the guardian of the law and the font of all honour not only within this country but in fourteen other Commonwealth realms around the world, a burden he assumed at the grand old age of seventy-three – a time of life when many of us have laid down the obligations of work in anticipation of a well-deserved retirement. And yet as the ancient and half-forgotten cry of ‘The Queen is dead, long live the King’ echoed 4from Land’s End to John O’Groats, we found ourselves confronted by a reality long contemplated but little prepared for. How would our lives change now that the Queen had left us? How would the new king’s reign differ from that of his mother? To what extent was his inheritance one of mere ceremony and duty? Did the King wield any real power in modern Britain or did he merely represent an institution whose time had passed?2
In truth, the King has entered into one of the most complex of all roles, for he is as much a symbol as he is a man, a living embodiment of the bond of national unity that holds this United Kingdom together. In every political system around the world there is some visible symbol upon which the people can centre their patriotism and so define their national character. If we look across the Atlantic to our American cousins, we can see this principle clearly expressed in the value they place upon their flag, whilst our French neighbours focus their attention upon their republican tradition as the very symbol of France. We, on the other hand, reserve this form of emotional appeal for our monarch, who is deemed and required to portray all our virtues whilst shunning all of our vices – a view which Winston Churchill felt moved to express on numerous occasions. The crown, he once remarked, was ‘the symbol which gathers together and expresses those deep emotions and stirrings of the human heart’, adding that it ‘has become the mysterious link – indeed, I may say the magic link – which unites our loosely bound but strongly interwoven Commonwealth of nations, states and races’.3 In this way, the sovereign lends what has often been described by commentators as ‘glamour’ not just to our political system but to our society as well.
The monarchy links us to our heritage in a sublime way and in so doing gives our daily struggles a sense of perspective and gives our 5efforts hope for the future. This is because the King stands as a link with our past, during which untold calamities and crises have been overcome. That feeling of an abiding connection with times gone by gives us great inner strength in times of trouble and explains the enduring appeal of our monarchy today. We feel that we are joined not just to our history by the presence of our King but to our future as well, through his family and, more importantly, his heirs and successors. In his radio broadcast prior to the coronation of George VI, Churchill summoned up this historic association to describe the ceremony that was to take place. He told his listeners, ‘From ancient times all classes have shared in it [the coronation] with rejoicing,’ before expounding that ‘the British constitutional monarchy embodies the traditions of a thousand years. The King will be crowned tomorrow not only under a ritual which has come down from the Plantagenets and Tudors but which revives forms and customs of Anglo-Saxon times.’4 The sovereign thus stands at the nexus of both past and future and so provides a sense of certainty in a transient and mortal world.
If the King is to succeed in the role that fate has ordained for him, he must be seen to embody these values and represent us all collectively. He must strive to be above and outside of all partisan activity, whilst recognising the wellsprings from which these conflicts arise. He must be, as far as is humanly possible, impartial to the competing views of the different sections of our community whilst being compassionate enough to understand them. Above all, he must be the keystone of our political system, giving his full backing and assistance to the government of the day regardless of its political persuasion and ensuring in the process that our constitutional principles are upheld. To this end, the monarch must avoid all attempts to sway him to any particular political expedience of 6the moment by those who feel that his own outlook may be closer to theirs than their opponents’. The King must continually stand above these day-to-day battles if he is to represent the nation as a whole.
We get a flavour of this from the very earliest days of Queen Elizabeth’s life. When the young princess accompanied her parents on a tour of South Africa in 1947, she was very much the remote and unknown heir to the throne. This was a situation that dramatically changed when she spoke to the wider empire and Commonwealth for the first time on her twenty-first birthday. In a speech that was old-fashioned and stilted by today’s standards, Princess Elizabeth sought to make a connection with her generation. ‘Although there is none of my father’s subjects, from the oldest to the youngest, whom I do not wish to greet,’ she began, ‘I am thinking especially today of all the young men and women who were born about the same time as myself.’ In so doing, she summoned up the camaraderie of the war that had just ended and the opportunities peace presented to the empire and Commonwealth. But then she made a surprising detour. What came next was very much a personal manifesto that encapsulated the importance of our constitutional monarchy and her place within it. It was an attempt to spiritually link her to the younger generations and so reforge this mystic bond that sustains the monarchy. So iconic has this speech become and such was its effect on the people of the time and to this day that it is worth quoting in full. She told her listeners:
There is a motto which has been borne by many of my ancestors, a noble motto: ‘I serve.’ Those words were an inspiration to many bygone heirs to the throne when they made their knightly dedication as they came to manhood. I cannot quite do as they 7did, but through the inventions of science, I can do what was not possible for any of them. I can make my solemn act of dedication with a whole empire listening. I should like to make that dedication now. It is very simple.
I declare before you all that my whole life, whether it be long or short, shall be devoted to your service and to the service of our great imperial family to which we all belong. But I shall not have strength to carry out this resolution alone unless you join in it with me, as I now invite you to do. I know that your support will be unfailingly given. God help me to make good my vow and God bless all of you who are willing to share in it.5
With these words, a young Elizabeth summed up the nature of the role that she would inherit in just a few short years. She was to become a living embodiment of the nation and her role was to serve the people in that capacity, a position she solemnly dedicated herself to. Such was the power of this statement that it formed the keystone of the mourning that greeted the news of her passing, encapsulating as it did her life and reign.
This epitomises the symbolic nature of the office, for it is in many ways the sovereign’s task to mask and temper change and in so doing, remove the fear and anxiety that innovation can engender in the wider community. This was a role the late Queen played to perfection. In this way, the monarch ensures domestic harmony whilst creating a space for organic change to occur. The ceremonies and traditions that centre around them reassure us by their reference to our historic past whilst diminishing the emotional response that may greet any political changes that find their way onto the statute book. By this alchemy, Britain has been able to be both a stable and progressive society, enjoying unparalleled domestic harmony over the centuries.
8But this is a civic benefit that is achieved at a price, for we expect our king to be both a symbol and a human being. We want personality without peccadilloes, glamour without vanity, modesty without shyness, a sense of duty without dullness, a sense of humour that does not mock us, a life devoted to service and yet one that is recognisably similar to our own. In short, we want what no human being could ever be; we want them to be perfect. It is this disconnect that has become most apparent in the digital age as our royal family becomes ever more visible. Their problems are now exposed for the world to see, and we are aware as never before that behind all the pomp and circumstance lies real people with real problems. With the Queen’s passing, it now falls to a man born in the ashes of the Second World War to define how this role can be recast for the world in which we now live.6
So this is the public and representational role of the King’s life as our sovereign. Yet what of his constitutional role? In short, does he wield any real authority or has our parliamentary democracy so shorn the office of its powers that it is now nothing more than a gilded sinecure?
We may live in a monarchy in the strict sense of the word, but it is one tempered by the fact that it is a constitutional monarchy, which makes all the difference. Far from being a country ruled by one absolute and singular ruler, we in Britain have for centuries lived in a state in which our sovereign reigns according to the established principles enshrined in our constitutional tradition. This distinction between absolute and constitutional monarchy has a long and illustrious pedigree in British history, stretching far back into the Middle Ages. In the fifteenth century, for instance, the English political theorist Sir John Fortescue famously defined the two states of monarchy in his book OntheLawsandtheGovernance 9ofEngland. He posited that there were two types of kingdoms in the world. The first was ruled by kings that made laws and imposed taxes solely on their own initiative and the second was governed by kings that respected laws and only engaged in activities that had received the assent of their people. Of the two, Sir John argued, it was undoubtedly the second which was the most successful and secure.7
This was a contention that was far from universal in the sixteenth and seventeenth centuries, as English and Scottish monarchs sought to adopt the concepts of absolute monarchy so fashionable in Louis XIV’s France. But the common sense of the British people could not believe that any human being, even a king, could be infallible. It was on this issue that the English Civil War was fought, and although Charles I’s son would eventually inherit the throne, no future sovereign would be able to claim that their actions were based upon a divine right to rule. From this moment on, it was agreed that the king must govern with the consent and support of Parliament. As a result, the concept soon developed that the king’s command must always bear a minister’s signature since the monarch was answerable to Parliament for their actions. If things went wrong, it was the minister that was held liable for the error not the king, who simply replaced the disgraced minister with another. In the process, this ensured that ministerial advice was always available to the sovereign to help govern their actions. Cabinet government was formed as a result of this innovation, establishing that ministers were the ones who increasingly made most of the political decisions, which they defended in the House of Commons. At the same time, the monarch slowly retired from active political life.
The Bill of Rights and the Act of Settlement that flowed from the Glorious Revolution of 1688 confirmed and strengthened the principle that government was undertaken by the sovereign and 10their constitutional advisers (i.e. their ministers) alone and not by the sovereign and any personal advisers whom they may happen to choose at any given time. By their actions in 1688, Scottish and English politicians had reached a truly radical understanding of the political structure in both kingdoms. They had accepted the principle that monarchs derived their legitimacy not from God but from Parliament and, through that institution, the people.8
Which brings us neatly to Walter Bagehot, the journalist and banker who occupies a central position in any discussion of the British constitution. In the midst of the turbulent year of 1865 – when Britain was griped with battles over the Second Reform Bill, Europe was confronting the first of Bismarck’s three wars of German unification and the US was emerging from civil war – he penned his seminal work TheEnglishConstitutionand secured his place in our political history.9 So influential is this work that scholars and commentators can hardly mention the words ‘monarchy’ or ‘Cabinet’ without some reference to his book. Its lively written style combined with Bagehot’s historical knowledge ensures this work continues to be read to this day. If we are, therefore, to dispel the glamour that surrounds our monarchy as an institution we must start with Bagehot.
This is because Bagehot has been central to the royal family’s education since 1894, when a young Duke of York attended lessons with J. R. Tanner, fellow of St John’s College, Cambridge, and an expert on maritime history and constitutional matters.10 He was instructed on the kingly side of statecraft through the lens provided by this work. In this way, Bagehot’s famous trio of rights for a constitutional monarch became embedded in the mind of the man who would become George V. In his ‘Notes on Bagehot’s EnglishConstitution’ he observes these rights thus (emphasis in original): 11
During the continuanceof ministries the Crown possesses, firstthe right to be consulted, secondthe right to encourage and thirdthe right to warn. And these rights may lead to a very important influence on the course of politics, especially as under a system of party government, that monarch alone possesses a ‘continuouspoliticalexperience.’11
In doing so, George completed a circuit that had been created by Bagehot thirty years before. For Bagehot had simply invented these three rights by stating them as a matter of fact, summoning them from thin air as rules of the constitution.12 And by accepting them as such, George V firmly established them in the lexicon of our political system, ensuring that all future monarchs were accorded these rights without question – a tradition that has been passed from one monarch to another until this present time.
In her biography of George VI, Sarah Bradford informs us that the young Prince Albert derived lasting knowledge on the monarchy from his time at Cambridge via the ‘brilliant exposition on the subject by way of Walter Bagehot’. She asserts that this learning influenced his approach to his role as king when called upon to serve following the abdication of his brother in 1936.13 Viewers of the TV series TheCrownwill also be aware that Queen Elizabeth was similarly fed on a diet of Bagehot when she received her instruction in kingship from Sir Henry Marten, provost of Eton, in 1938.14 Kenneth Harris has noted that Charles III has covered the same ground his mother, grandfather and great-grandfather trod before him.15 In this way, the Bagehotian trio of rights has become a fixed point in our constitutional settlement, affecting not only how our monarchs view their role but how they can and should use their influence at any given moment. This has been reflected in 12the pronouncements of the Queen’s closest advisers in recent times. For instance, Sir William Heseltine, the Queen’s private secretary, stated explicitly in 1986 that the Queen had ‘the right – indeed the duty – to counsel, encourage and warn her Government’.16
Alongside these rights, Bagehot is also responsible for the way in which we view our constitutional settlement. This is because he divided our political system into two parts – the dignified and the efficient. In so doing, he ascribed all the ceremonial, symbolic and ‘dignified’ functions to the monarchy whilst assigning the mundane administrative functions or the ‘efficient’ to the political government of the moment. In this way, he highlighted that in all but a few key areas the monarch acts on the ‘advice’ of their ministers and as such has no real autonomy in their actions.17
That said, I think it is important that we pause here for a moment to discuss what exactly we mean by the term ‘advice’, as it plays such a key part in the British constitutional system. When the term ‘advice’ is used it is important to understand that there is both formal ‘Advice’ and informal ‘advice’, with each having a different legal character.18 In a constitutional monarchy, it is a crucial requirement that the sovereign remains politically impartial and this is achieved through the principle that almost all public acts of the monarch are taken on the ‘Advice’ of their ministers. ‘Advice’ of this kind can only be given by a minister and is of such a binding nature that the sovereign has no choice but to accept it. To reject it would lead to the resignation of the government, forcing the monarch to find new ministers who would hold office as the sovereign’s personal choice. Such actions would potentially place the monarch in direct opposition to a majority in the House of Commons and to one or more political parties, indicating in the process a political partisanship that no constitutional monarch could long survive. The doctrine 13that the sovereign only acts on the ‘Advice’ of their ministers thus protects the monarch from political involvement because it recognises the reality that all official acts are essentially the decisions of the government of the day, who are held responsible for them by the people. Put simply, the monarch is not the instigator of the government’s actions and thus is not to blame for their outcomes.19
Informal ‘advice,’ on the other hand, is not binding and can be given by monarch, minister and other political actors or citizens. The right to advise, for instance, is informal as the monarch can advise a Prime Minister not to do a thing but the Prime Minister is under no obligation to follow that advice.20 Although the monarch can never formally ‘Advise’ the government, there are several occasions when ministers cannot formally ‘Advise’ the sovereign, a point I shall return to in a moment.
Bagehot believed that the monarch had no part to play in the efficient part of the constitution as all effective actions were undertaken by ministers. In doing so, he misled his readers by implying that the monarchy was simply above and separate from the political competition that defined the efficient part of the state. This in turn created the image that we hold today of the monarchy as existing on a separate plain to our politicians, that the essence of constitutional kingcraft is that the sovereign reigns but does not rule. In general, this conventional wisdom is indeed correct. The monarchy is not partypolitical in nature, but this does not mean it is not political. The crown has a central and crucial role to play in our political system due to something called the royal prerogative. Put simply, these are the sovereign’s political powers, which are seldom discussed in wider society and are instead confined within legal debates and academic study.21
Following the line taken by Peter Hennessy, Anthony Seldon, 14Vernon Bogdanor and others, I believe we need to discuss these powers, their importance and their use openly if we are to truly understand how our constitutional system works. Lord Blake perhaps said it best in his Gresham College Lecture in 1984 when he argued that ‘I do believe the vestigial powers of the British monarch do matter’ but that ‘they should be exercised … with the greatest tact and discretion’.22 This view was taken up by Peter Riddell in 1994 when he argued that it was perfectly acceptable for people to discuss the monarchy and its role in modern Britain without being thought of as disloyal to the system in some way. Instead, he felt, ‘In the Crown’s own long-term interests, the fog over its political role needs to be lifted.’23 A sentiment I fully agree with, but where to begin?
A good place to start might be the King’s role within our constitutional monarchy. This role is largely a symbolic one, but this symbolism is, however, given substance by the existence of his prerogative or reserve powers. These are those discretionary powers that reside in our head of state, enabling them to uphold and maintain the fundamental constitutional settlements of the system of government of which they are head.† These powers are vital to the wellbeing of our political system, as they ensure the effective operation of the government and provide the last line of defence against government action that breaches fundamental constitutional principle. The monarch is not merely the symbolic guardian of the British constitution but is the one person who holds the powers of last resort for its own protection.24
Seen in this light, our King is a rather more active participant in the constitution than is usually felt to be the case, for he is the 15protector, guardian and defender of the constitution. This is a role that is highlighted in the King’s Coronation Oath, where he swore to ‘govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, your other Realms and the Territories to any of them belonging or pertaining, according to their respective laws and customs’.25
This oath, which was originally laid down in the Act of Settlement 1701 and is used by all subsequent monarchs to this day, is not just some minor piece of symbolism but is in fact a central part of the sovereign’s assumption of office. When the oath was originally included in the Act of Settlement, it was not viewed by its authors or Parliament as some minor issue separate from the overall revolutionary settlement but was a deliberate creation that broke with the historic precedent. The oath, more than any other act, symbolised the revolutionary nature of what had taken place in 1688 and was seen as the condition on which each individual monarch held the crown. Any breach of this condition by the monarch could be used as grounds for their forfeiture of the throne by Parliament.
We can see this more clearly when we look at the wording of the original oath the sovereign took prior to 1688, which affirmed that the laws of the land were merely the gift of the king to their subjects: ‘Sire, do you grant to be held and maintained the just laws and liberties of this realm, and will you, so far as in you lies, defend and strengthen them to the honour of God?’26 In so doing, it indicated to the people that the king was both above them and could not be bound by them. As the king’s authority flowed from God, no mortal power was equal to theirs or capable of removing them from office. The new oath did away with this concept entirely. From now on, the monarch was accountable to the law in much the same way as their subjects were. Moreover, they were the law’s guardian 16and primary enforcer. As such, their position in office rested on their just execution and defence of the rule of law.27 A fact that was reinforced by Acts 12 and 13 of William III’s reign, which affirmed:
the laws of England are the birthright of the people thereof; and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to said laws; and all their officers and ministers ought to serve them respectively according to the same.28
In this way, the rule of law was enshrined and accommodated within the ancient legal maxim rexnonpotestpeccare–the king can do no wrong – as a continuing part of British constitutional practice. By so doing, the crown, Parliament and the courts had mutually recognised the fact that the executive had no innate prerogative power to suspend or to alter either statutes or the common law. All executive decisions must therefore be made in accordance with the principles, procedures and requirements set out by the law as contained within either statute or common law.29 As the monarch is considered by the law to be incapable of wrongdoing, the courts assume that if the government is found to be in breach of the law, the advice given to the monarch must have been at fault. This is because they presume the crown’s intentions are to always act constitutionally. Ministers can be found to be at fault, but the monarch is assumed to be blameless.
This is a process we can see at work in the recent Supreme Court judgment in R.(Miller)v.thePrimeMinister. When called upon to decide the lawfulness of the Queen’s prorogation of Parliament in 2019, the court found the advice the Prime Minister gave the Queen to be in error, thus invalidating the act. The court made clear 17that it was the flawed advice provided to the Queen by her advisers that led to an illegal act being committed, not the Queen’s order that was illegal, ensuring she received no blame for the action.30
The logic upon which this convention is built is that the head of state is always obliged to act in a manner that is in accordance with the law as it then stands and traces its pedigree back to Magna Carta in 1215. The implication of this assumption is that by extension the monarch is not obliged to act upon any ministerial advice, regardless of how much support the government has in Parliament or the country, that requires them to knowingly breach the law or constitution. This principle was outlined by Professor Pitt Cobbett in relation to Australia and the Governor-General, but his observation is just as relevant for the UK itself.‡ He says:
The Governor-General is at once entitled and bound to refuse to act on the advice of his Ministers, in a case where this would involve a breach of the law. The Constitution, as we have seen, constitutes the Governor-General the chief executant and guardian of the law and its due observance is a duty he owes … to the community over which he presides, whose permanent wishes must be presumed to be embodied in the laws deliberately made by Parliament and whose permanent interests are identified in their strict observance.31
Seen in this way, we can be reassured that the sovereign’s reserve or prerogative powers should be exercised in a manner that is consistent with and supports fundamental constitutional principles, such 18as representative government. These principles include the rule of law and the separation of powers.32 As a result, the monarch forms a nexus for the three primary principles of our democracy and ensures both the spirit and function of the British constitutional system.
The way in which the British constitution has developed means it does not embody just one but many constitutional theories, all of which can have relevance at any given time. Monarchic rule, parliamentary struggle, revolution, democracy, custom and law are all combined to form the cohesive whole that we know today. Although communal oversight and a diffusion of power have existed in the English and Scottish political systems for centuries, democracy itself is a late arrival to the constitutional party. Much of the system that exists today was developed before democracy was an accepted let alone desirable outcome. A fact Anthony King highlights well when he recognises:
The United Kingdom was a monarchy before it became a constitutional monarchy. It was a constitutional monarchy before it became a system of government built around ministers of the Crown. It was a system of government built around ministers of the Crown before it became a parliamentary system. And it was a parliamentary system before it became a parliamentary democracy. Democracy … was a novel feature grafted on to a pre-existing constitutional structure.33
This is why Tony Benn said that it was important to understand the powers of the crown if we are to truly understand how we are governed.34
Democracy in the UK is thus a form of ‘liberal democracy’. This fact defines its substance as a system of representative and responsible government in which voters elect the members of a representative 19institution, namely the House of Commons. The government of the day is then largely (but not exclusively) chosen from amongst its members and is, in turn, accountable to the Commons and through it, to the electorate itself. The Reform Act of 1832 began a process where representative democracy was progressively accommodated within the existing political structure, and the nature of the electorate and its composition have continually changed over the decades to arrive at our current point in time.35 All of which means that our current system of a liberal, representative and indirect democracy is neither flawless nor immutable but continually changing to meet the needs of the country.
We must, therefore, neither overstate nor dismiss the current and historical importance of democratic institutions within the UK. Parliament is the supreme legislative body within the country, having established that there is no source of law more authoritative than an Act of Parliament in the Civil War of the 1640s and the Glorious Revolution of 1688.36 This principle, however, is founded upon the unique authority Parliament derives from its representative nature and thus its link to the people. Had the House of Commons not contained within it an element of democratic principle in the seventeenth and eighteenth centuries, it is unlikely it would have been able to bend the crown and its ministers to its will. Yet we must always keep in mind that although Parliament may be supreme in legislative matters, it is not the supreme executive authority within our country. That honour rests in the hands of the monarch, as head of the executive, and through them their ministers and the Cabinet as embodied in the concept of the crown, a notion that was developed over the centuries to distinguish between the personal and the political acts of the monarch as the realities of Cabinet government became more established.
20This split in the functions of the crown, or executive authority, led to the evolution in the UK of a binary executive comprising a head of state (the monarch) and a head of government (the Prime Minister) who between them fulfil the executive functions of the constitution.37 What this means in effect is that the monarch is considered to act in two distinct and separate ways that encompass both their personal constitutional role and their public governmental role. In the first, the monarch has a wide degree of autonomy and can perform their functions as they see fit, whilst in the second their acts are those of government ministers, over which they have no control.
The overwhelming majority of executive acts fall into the second category and are exercised by the Prime Minister and the other ministers of state without the involvement of the monarch of the day. The personal functions of the head of state, however, are different in nature and can be broken down into three specific areas. The first is the formal and residual constitutional functions that require the monarch to become directly and personally involved in the political process. The second is the ceremonial activities that the monarch regularly undertakes, such as public engagements, commemorations or rituals. The third, and perhaps the most important, is that the monarch represents and symbolises not just the state but the nation too. In this capacity, they form and provide the physical embodiment of the unity that makes us a national community.38
The powers of executive action, legislative initiation and judicial oversight were collectively fused together in 1688 to form the theoretical concept called the ‘King-in-Parliament’, to which was ascribed the concept of parliamentary sovereignty that lies at the heart of our constitution.39 This concept ensures that an Act of Parliament 21is the highest form of law recognised by the courts and has the ability to perform any action that Parliament has devised. We can see this theory at work in the preamble to all Acts of Parliament, which states, ‘Be it enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and with the authority of the same, as follows…’ Only a bill passed by the House of Commons and the House of Lords that has received the assent of the monarch will be viewed by the courts as having this supreme character to which all entities in the kingdom must bow. As no form of power is greater than an Act of Parliament, the King-in-Parliament is seen by the courts as the supreme law of the land.40 It is because of this concept that Vernon Bogdanor could say, ‘The Constitution can be summed up in just eight words: What the Queen in Parliament enacts is law.’41
As a concept, parliamentary sovereignty has, over the centuries, proved itself extremely capable of being able to balance effective government with liberty and freedom because it is based on a harmonious principle which requires the three branches of government to cooperate with each other to administer the country. The goal has not been to create a system in which separate branches of government are each free to exercise their authority subject to being checked and balanced by the actions of the other two, as is the case in the US. Instead, the British system encourages cooperation between the monarch, Parliament and the courts, allowing for the development of several different points of view and opinions, which must be balanced in policy creation. For the government to act, it must do so through debate, consultation and individual participation, which creates a degree of consensus before a decision is 22implemented. Legal decision-making must be based on the broad consent of multiple interests of society and once the decision is arrived at, all three branches collaborate to ensure its implementation.
Should this harmony be disrupted or abandoned by one branch, it falls to the other two to intervene and reinstate the harmonic procedures. In this way, the monarch, Parliament and the courts each have a role in ensuring the proper functioning of the system.42 It is through an acceptance of this concept that our system allows for a fusion of the executive and legislative powers. This fusion between the legislature and the courts and the courts and the executive was recognised until the creation of the Supreme Court in 2005. Before this, the highest court in the kingdom was located within the House of Lords and the Lord Chancellor was both a government minister and the highest-ranking judge.
Ensuring the system works effectively and that the ‘efficient’ and ‘dignified’ parts of the executive can function harmoniously together means that both the monarch and their ministers accept a framework and series of presumptions on how the system should work. These are:
The sovereign must act on the advice of ministers in the exercise of most but not all executive functions.Ministers must accept all the political consequences for their decisions.The monarch must be politically impartial.Ministers must not act in a way that draws the monarch directly into the political process.The sovereign must accept the advice and support of their ministers, thus ensuring the sovereign cannot have an independent policy.23This framework reconciles the monarchy with the reality of parliamentary democracy, whereby the will of the people, as expressed by the House of Commons, prevails.43
This book is therefore focused on the use of those powers that are vested in the monarch personally and which can be used to ensure the effective operation of the political process. As mentioned earlier, the King performs several personal functions as our head of state and this work seeks to explain the powers required to meet the first of these functions – in other words, to highlight and explain through historical examples exactly what we mean by the formal and residual constitutional functions that may require the monarch to become directly and personally involved in the political process. I will highlight not only the role our monarch plays in our political process but also the options open to the King in how he can exercise those powers, should he be called upon to do so during his reign. In this way, I hope to contribute to the public understanding of how our constitution truly operates.
I will explore the existence of those powers, collectively known as the royal prerogative, which the King retains independently of the legislative authority of Parliament. In so doing, I will discuss historic examples of their use and the limits under which they operate, all in the hopes that we can discuss our political system in a sensible way based on an understanding of the constitution.
