If I Were King
By Duncan Whitmore
On February 6th, Queen Elizabeth II marked her Platinum Jubilee, the only British monarch to have reached this extraordinary milestone. Should she still be reigning in around two years’ time she will surpass the record of the so-called “Sun King”, Louis XIV of France, whose reign (1643-1715) is the longest of any monarch in history. Ordinarily, our cultural leftist establishment and mainstream media tend to regard Britain’s history, traditions and patriotism as either an embarrassment or an active target for denigration. Her Majesty, however, seems to be spared much of this vitriol; instead, we cling onto her as a vestige of pride in an era which struggles to find little else to celebrate.
Given that it is nearly always possible to predict the long terms results of the latest government “initiative”, scheme or outrage, it is difficult not to muse on how one would act in possession of the keys to power – or, at least, on how one would act in a position that could influence power. What whould I do if I was the king? Or, looking retrospectively, what would I have done had I been wearing Elizabeth’s crown for these past seven decades?
Of course, such speculation is a trifling fantasy rather than a serious proposal, and not mainly because of the fact that I am probably the x-millionth in line to the throne. As libertarians, our task is not to install the “right” people as kings, presidents and prime ministers, not even ourselves; rather, it is to vanquish any kind of state power in any form that it takes (although I would be perfectly happy for the Royal Family to remain with their titles and big houses as a symbol of British tradition and culture so long as they did so through voluntary funding). Regardless of how angelically “libertarian” a ruler may aspire to be, true freedom can come only from the bottom-up, not from the top-down. But even if this wasn’t the case, when it comes to the question of a state’s structure, the territorial extent of that state’s jurisdiction is likely to be a more critical factor than the precise constitutional composition; all else being equal, the de facto limits to a state’s power are likely to be stronger in, say, a small dictatorship than they are in a large democracy. Thus, seeking the break-up of states is probably a more productive endeavour than trying to tinker with constitutions and bills of rights, or otherwise trying to enact “freedom friendly” laws.
Thus, if I were king, I would probably end up abdicating so as to use every ounce of my established fame and fortune to denigrate the state I once ruled over – something like a non-woke Prince Harry. Of course, this is much easier to say in the comfort of relative obscurity; regardless of one’s wealth and popularity, any challenge to the statist-quo comes at enormous costs. But it is probably be the best that could be done if a libertarian was in that position.
However, under the assumption that Britain will retain a monarch with a constitutional role (as opposed to purely symbolic or ceremonial functions), this jubilee year seems like an appropriate moment for us to make a serious assessment on precisely what that role could be, and whether or not a positive case can be made for it from a libertarian perspective. Tentatively, my answer is that such a role could be expanded (or rather redefined) from its present state, an expansion which could introduce a degree of balance into the constitutional system that is presently lacking.
Unfortunately, we must admit at the outset that much of this is likely to be academic, for at least two reasons. The first, and most obvious, is that the prevailing zeitgeist encourages us to recoil in horror from the possibility of specific persons exercising state power by right of birth, an attitude that is unlikely to be shaken any time soon. In fact, the declaration of the Royal Family’s website that the Queen is to remain “strictly neutral with respect to political matters” is something of an understatement; Elizabeth’s persistent attitude throughout her reign seems to have been that of utter public indifference to even the gravest matters of constitutional concern.1 Thus, after seventy years of a monarch with little appetite for remoulding what we are told is “constitutional convention”, we are now thoroughly accustomed to a figurehead who “reigns but does but rule”.
Second is the fact that recent sustenance of the monarchy has rested largely on Elizabeth’s personal popularity, which happens to top that of all other royals while cutting across boundaries of politics, age, gender and class. Doubtless her longevity accounts for much of this level of public adoration which, like that of her late mother, seems to be cementing her as an institution in her own right. Moreover, her eternal public silence is probably also a factor in this popularity, having lent her something of a disconnection from the grubby weasels who have often populated her governments. Thus, given the fact that Elizabeth’s immediate successors are always likely to reign in her shadow, they are unlikely to be able to muster popular will for any change towards a stronger, constitutional role for the monarchy, even if they were so minded. And, to put it mildly, neither Prince Charles nor Prince William inspires much confidence if our aim is to prevent the Royal Family’s final metamorphosis into another of the state’s culturally leftist tentacles.
All in all, Elizabeth’s eventual passing will likely be a watershed in public attitudes towards the institution, attitudes which are likely to drift towards greater scepticism of a constitutional role that now seems outdated by conventional standards. As a result of this, while the discussion below is intended to be as “realistic” as possible from a mainstream point of view, it should be thought of more as musing, pondering and speculating rather than laying the groundwork for a serious political objective. However, it will give libertarians some food for thought in understanding how state power can be controlled through balance rather than through our more traditional goal of eradication.
The British Constitution
Given that absolute rule has long since fallen out of favour, the problem of restraining state power is a preoccupation for most contemporary political theorists, not just libertarians. The modern, fashionable answer – as implemented by the Constitution of the United States – is that the functions of the state should be split into different institutions (legislative, executive and adjudicative). Theoretically, the resulting “checks and balances” should prevent the accumulation (and, hence, the abuse) of power in any one person, body or institution. While, originally, appointments to those institutions could result from a variety of methods – prior to 1913, US senators, for instance, were appointees of state legislatures – today, it is expected that all state power receives its ultimate blessing through democratic accountability.2 In short, power is obtained from the single source of the ballot box, but it is operated by distinct bodies.
This is not the way in which the English/British constitution developed. The turmoil of the seventeenth century – which saw a civil war and the loss of Charles I’s head before a failed attempt at republicanism – was the product not of antagonistic functions of power but of sources, namely the Crown and Parliament. The former draws its power from birthright; the latter formerly from the economic power of landowners, but today from the ballot box. Following the “Glorious Revolution” of 1688 which crystallised the system of “constitutional monarchy”, these sources operate together in the major organs of state, a situation that results in the fusion of powers in contrast to their separation.3 In other words, power is obtained from separate sources, but it is wielded by bodies that are less clearly defined according to particular constitutional functions.
This fusion seems least applicable to the judiciary, although the House of Lords was still the highest court of appeal until 2009. Most clearly, it is seen in the legislative/executive functions through the concept of the “Queen-in-Parliament”. In contrast to the United States, where an Act of Congress is a unilateral act of that body subject to review by the other branches of government4, an Act of Parliament is the product of the Queen (through her ministers) legislating with the advice and consent of Parliament. In this light, we can see why the doctrine of Parliamentary Sovereignty makes sense and why, following the 1689 Bill of Rights, “Proceedings in Parliament” are considered unquestionable in any other forum such as a court of law: for Parliament itself is the forum for the resolution between different, constitutional powers, and an Act of Parliament is the product of that resolution.
Such division of power and allegiance may well prove to be a more successful check upon the state than simply dividing it up into functions. For one thing, it has its origin in the actual values that people hold, whereas the “separation of powers” is more of an artificial construction. For instance, the Church acted as a restraining force prior to the Reformation, while the sovereignty of the states was supposed to serve as a check upon the power of the US Federal Government. Indeed, it is likely that the balance in the British constitutional system was a major contributing factor to the subsequent power and prosperity of Britain that was sustained until the eve of World War One. Certainly, the overall constitutional setup has resulted in Britain surviving until now without any revolutionary upheaval for the reason that those who have sought power were largely accommodated within the constitutional structure. This is in contrast to Britain’s European neighbours, such as France, Germany and Russia, where considerably greater degrees of power remained vested in the monarch, while parliaments and assemblies, if they existed at all, were little more than talking shops.
However, if the balance between Crown and Parliament is to be maintained then each of its wings has to remain equally strong. Moreover, the power of each wing must be drawn from a separate source, ideally conflicting with (or even antithetical to) the source for the other wing. Should one wing lose its power then the balance is obviously upset; should power cease to come from separate sources then there is no balancing at all, merely a de facto monolith.
Unfortunately, in just the same way as the waning power of the states of the US has given way to the consolidation of power in Washington DC, so too has the power of the monarch waned in the intervening centuries relative to the power of Parliament.
Initially, post-1688 monarchs played an active role in the political process. William III and Queen Anne withheld the Royal Assent from bills passed through Parliament (the last such occasion being the Scottish Militia Bill of 1708); the hiring and firing of ministers was more often determined by the monarch’s own political priorities; the monarchs could successfully influence government policy, as evidenced by George III’s continual opposition to catholic emancipation; and, of course, they were active in foreign policy, as, again, George III was in regard to relations with America and France.
Over the course of the past three hundred years, however, the political power of the monarch has diminished into the situation we have today in which our present Queen is little more than a figurehead (a diminution which, arguably, was made inevitable by the system from the start). By 1865, political theorist Walter Bagehot had downgraded the monarch’s political role to “the right to be consulted, the right to encourage, and the right to warn”.5 Today, such consulting, encouraging and warning presumably takes place during the Queen’s weekly audiences with the prime minister, meetings which remain private, undocumented and, thus, outside the scope of any formal, constitutional rigour. As democracy ascended while all competing theories of governance were discarded, the requirement of democratic legitimacy was superimposed onto the constitutional structure by a) the election of Members of Parliament by an adult population with universal suffrage; and b) the selection of ministers from a government that could retain the confidence of the House of Commons (which these days means the party or coalition gaining the majority of seats in a general election, with its leader becoming the prime minister).
Thus, a system designed as an accommodation between two different sources of power has, in practice, become a unitary system managed entirely by the government of the day, drawing its authority wholly from the ballot box. The constitutional fiction of two powers – Queen and Parliament – remains but has, today, been replaced by the notion that the purpose of the Queen’s ministers is to govern while the purpose of Parliament is to hold that government “to account”. The reality most of the time, though, is that the government is subject to very little control. For the power of the Queen is now exercised by her elected ministers6, but the very same people, by virtue of their majority in the House of Commons, have control over the legislative agenda and the votes.
The government must, of course, retain the support of its MPs to pass legislation, and can be unseated at any time if it loses the confidence of the House. In practice, however, the effectiveness of such a threat is limited by a number of factors. For one thing, only a minority government or one with a slim majority is likely to face a rebellion large enough to bring the government down entirely. Given that the “first past the post” electoral system tends to ensure that such governments are a rarity, successful votes of no confidence are, in turn, practically unheard of. Indeed, since the end of the First World War, Britain has seen only three such votes, all of which brought an end to weak governments. But even if this wasn’t the case, the ultimate backstop is that the check upon the government – facing an election it could lose – is an equal threat to individual MPs, especially if a party has procedures in place to deselect rebellious members. Thus, if any one MP’s lack of confidence in the government is outweighed by sour prospects for his personal re-election, there is unlikely to be an effective rebellion.7 Majority parties do, of course, fall out with their leaders when they are perceived to be a liability – as was the case with Margaret Thatcher in 1990 and Theresa May in 2019 – but in those instances most of the same personnel remain in government under the aegis of a new, more acceptable prime minister.
In short, we have a heavily centralised and consolidated political machine in the government of the day – a situation which the late Quintin Hogg, Lord Hailsham, referred to as an “elective dictatorship”. To make matters worse, Britain is somewhat unique amongst developed countries in that, devolution notwithstanding, state power as a whole remains highly centralised in the capital city.
Needless to say, none of this has gone entirely without notice, with the last few decades having seen the development of constitutional methods designed to curb executive power. One such instance concerns government (ab)use of the so-called Royal Prerogative, a set of residual powers retained by the monarch following the 1688 settlement. At least some of these powers make sense when exercised by a hereditary monarch who cannot be unseated. Today, however, they are exercised by ministers dependent upon electoral victory, lending them a vehicle through which political goals can be accomplished without parliamentary scrutiny. For instance, in 1984 Margaret Thatcher used prerogative powers in order to ban trade union membership amongst spies at GCHQ, a decision which – coming into force only a few days before the start of the miners’ strike – came to epitomise her government’s policy towards industrial relations. During subsequent litigation, the House of Lords (in its judicial capacity) decided that use of the prerogative powers should no longer be immune from judicial review, lending the courts a new inroad into this area of executive fiat.8 More recently, Boris Johnson’s Prorogation of Parliament in 2019 – again, a prerogative power – was successfully challenged in court during the Brexit stalemate (although the court’s decision was as contentious as the power it was attempting to restrain).
As this increase in judicial oversight over executive power indicates, the general trend has been towards squeezing the British constitution into something more akin to the “separation of powers” model. Of particular note in this regard are some of the constitutional reforms passed by the Blair government. In addition to booting out most hereditary peers, the House of Lords was stripped of its judicial function in favour of a new Supreme Court; meanwhile, the role of Lord Chancellor – who was simultaneously a member of the cabinet, presiding officer of the House of Lords, head of the judiciary, and a judge of the High Court – was split. Significant also is the Human Rights Act 1998 which requires the courts to examine primary legislation for congruence with the European Convention on Human Rights. While, legally and constitutionally, Parliament may repeal the Act at any time, practically and spiritually the British constitution has moved more decisively towards judicial insulation of certain rights and freedoms from being usurped by either primary legislation or public decision making.9 Finally, a less formal change has been the increasing mimicry of presidential systems of government, in particular with the elevation of the public persona of the prime minister. The introduction of White House-style press conferences, with a suite in 10 Downing Street having recently been built for the purpose, is a case in point. Such a practice may be perfectly acceptable in the US where the President neither sits in nor governs at the behest of the Congress. Over here, however, Speaker of the House of Commons Sir Lindsay Hoyle recently reminded the government that major policy announcements should first be made in Parliament. Cynically, of course, we can just write the matter off as the government trying to avoid the scrutiny of MPs; but it would be congruent to cite it also as an example of the executive increasingly regarding itself as a more distinct institution from the legislature.
Rejuvenating the Monarchy
Given that, as I have argued before, the separation of powers is a largely ineffective restraint upon state largesse (and that recent constitutional changes have gone hand in hand with the “march through the institutions” of cultural leftism), it could be argued that the monarchy’s historical place in the constitution presents a modest, but unique, opportunity for Britain to achieve a greater degree of constitutional balance than is presently the case.
To belay any misunderstanding, this should not entail the Queen returning personally to an active, executive role. That ship – completely reversing the notion than she should stay out of politics – not only sailed decades ago, but has been engulfed by the ocean of democracy (and is, in any case, of doubtful desirability). Thus, we are not suggesting that the Queen should get involved in matters such as changes to the Highway Code or the tax rate on cigarettes.
Where she could have a more active role is in each of two situations, neither of which are matters of everyday politics:
- To act as a constitutional guardian in matters of major constitutional import;
- To act as a broker (or mediator) in times of constitutional crisis or political stalemate.
In regards to the first role, the Queen should regard it as her duty to ensure that major constitutional changes cannot be smuggled in through the normal business of government. In the words of Lord Justice Laws, such a change would include one which:
(a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.10
This is important because – unlike in the US, which has a special procedure for amending its constitution – the British constitution has few avenues for making such changes other than through the regular legislative process.
The current constitutional convention is that the Queen should always grant the Royal Assent to a bill that has passed through Parliament unless advised otherwise by her ministers (the very same people who usually want to see that the legislation is passed).11 But when it comes to bills which have major constitutional ramifications, we could suggest a modestly amended convention to lend the Queen a greater degree of discretion. This proposal is that the Queen should not withhold the Royal Assent from a bill if:
- There is an exceptionally clear mandate to enact the change above and beyond a mere manifesto commitment of the elected government; and
- The language of the bill is unambiguously clear in its objective and scope.
Of course, this is defined negatively so as to appear, in accordance with the democratic zeitgeist, as a restraint upon the Queen. Practically, however, it should serve as a check upon the government, placing extra hurdles in the way of major constitutional amendments.
To clear such hurdles, the most likely options for the government are:
- To obtain approval for the legislation via a supermajority vote in both Houses of Parliament;
- Dissolving Parliament and seeking a fresh, electoral mandate;
- Subjecting the constitutional matter to a referendum.
Options one and two are likely to be the least controversial, although we will mention the problem of strong governments in a moment; House of Lords reform may also be required before option one could be wholeheartedly recommended. The third, however, is more ideal given that it focuses on a single issue, with the debate being brought fully into the public realm instead of simply amongst the political class. Moreover, there is a greater chance that the government will be forced to define that issue in clear, unambiguous terms, in contrast to the long winded prose of much contemporary legislation which has the ability to subject traditional rights and freedoms to the open ended discretion of the police and courts. While referendums are not well established in British constitutional history, they have been more frequent in recent years: for devolution in Scotland and Wales in 1997; for alternative voting in 2011; and, of course, for Brexit in 2016.
The notion of singling out particular statutes for their constitutional import (“constitutional statutes”) is relatively new to British constitutional law, but it is not an anathema. The courts, for instance, have recently begun to recognise that certain legislative provisions (such as clauses retained from Magna Carta 1215, the Bill of Rights 1689 and the Human Rights Act 1998) must be expressly, rather than impliedly, repealed or overridden by a later Act of Parliament. So if, for instance, there is an apparent conflict between a constitutional statute and a later, “ordinary” statute, the former will prevail unless the latter states unequivocally that it should take priority when settling the conflicting provision.12 It is not an overwhelming leap for us to insist that such constitutional statutes should endure a more rigorous process at the stage of enactment, with the Queen insisting that such a process is followed.
It may seem obvious that such roadblocks will be harder to clear by governments that have only a small, electoral majority (and/or if passage of the bill through Parliament has been contentious). However, the bigger danger is likely to be posed by a government with a large majority and, hence, a greater ability to get what it wants, potentially wreaking constitutional havoc (as the Blair government arguably did). Hence, these roadblocks should be placed most insistently in the way of administrations with the greatest electoral success.
From the point of view of mainstream thinking, frustrating a powerful government in this way is not necessarily “anti-democratic”. For one thing, it should be remembered that landslide general election victories can be the product of dissatisfaction with the opposition and lower turnout than of overwhelming support for the victorious party. For instance, both of Labour’s landslide victories under Tony Blair (1997, 2001) were achieved through turnouts lower than that of the previous election, sharply so in 2001. More generally, it is a stretch to interpret a vote for a party as an endorsement of every detail in its manifesto, and so it is reasonable to insist that legislation with far reaching implications should be subject to a more rigorous process.
A good example of where these roadblocks should have been in place is with the ratification of the EU treaties and their incorporation into UK law. If, for instance, governments had had the decency to consult their electorates explicitly on the matter by holding referendums, we may have sooner avoided our descent into a vassal state of the EU, not to mention the bitter division over Brexit. So too should the Human Rights Act and the other constitutional amendments passed by the Blair government been subject to additional scrutiny. Today, (in my view) it should be required of the Police, Crime, Sentencing and Courts Bill, and the Online Safety Bill, which threaten to make significant and vaguely defined inroads into the right to protest and to the freedom of speech respectively.
The second, proposed function of the monarch is to act as a broker, or mediator, in times of constitutional crisis and/or seemingly immovable stalemate in the political process. The most pressing, recent example is the Brexit fiasco. In fact, much of this gridlock could have been avoided if a proper, constitutional procedure for holding and abiding by referendums had been developed, and if the Fixed Term Parliaments Act 2011 had not removed the prerogative power to dissolve Parliament – a removal that effectively sustained a zombie legislature when Boris Johnson lost his working majority in 2019. Nevertheless, given the situation as it unfolded, there are at least four pieces of advice that the Queen could/should have lent the political class as the Parliamentary process began to ossify:
- Given that the referendum had produced a clear result, that result should be implemented, and Britain should leave the European Union. While the legal status of the referendum was advisory, the maintenance of constitutional legitimacy (which it is the Queen’s duty to uphold) is inconsistent with Parliament reversing, nullifying or otherwise ignoring the result of the vote;
- The precise terms of departure can be debated and subject to a further referendum (e.g. Theresa May’s Deal vs. No Deal); however, no new vote could nullify the decision to Leave. In other words, the prospect of “Remain” was off the table, and could form no part of negotiations;
- That, in light of the proceeding two points and the (apparent) commitment of the MPs to democracy, those opposed to the government should not use the Parliamentary process to simultaneously a) reject proposed withdrawal deals, b) delay the date of departure from the European Union, and c) deny an early general election upon the loss of the government’s working majority. At least one of these paths, all of which were taken by opposition MPs in 2019, should have been sacrificed;
- Once Britain has left the EU, those opposed to the decision could begin a campaign to rejoin.
Had this advice been given and followed we may well have avoided four, bitter years of antagonism and repeated crises. Moreover, it should not be assumed that this suggested advice is inherently biased towards leaving the EU. If hardcore Remainers had accepted the referendum result in 2016, a new campaign to rejoin may have had a greater chance of gaining electoral traction in the following years. However, given that their choice to fight simply entrenched divisions at the extremes, the prospect has likely been killed for the foreseeable future (at least, that is, if the voters are to have any say in the matter).
A possible objection to this proposal from a libertarian perspective is that it appears to concede the notion that democracy, through referendums, is a legitimate process for overriding basic rights and freedoms.
For instance, say that the government proposes to abolish, entirely, the right to protest. In accordance with our proposal, the Queen will refuse Royal Assent to any bill enacting such an abolition unless the government clears at least one of the hurdles we specified above. As a result of this requirement, the government decides to subject the right to protest to a referendum. To the horror of any libertarian, the people vote in favour of abolition. Consequently, the government is able to obtain Royal Assent for legislation that would allow the police to arrest any protestor, anywhere, for any cause, however peaceful. Surely the libertarian view on this should be that no process could ever justify such an intrusion into such a fundamental right? How, therefore, we could we ever support a constitutional procedure that does just that?
However, to argue in this way is to look at our suggestions from the wrong angle. We are not denying that rights are absolute, and that no state should have the ability to take them away. But if we are confronted with the realpolitik of having to suffer at least some kind of state, we should at least find ways of making its intrusion into our rights as difficult as possible. Thus, subjecting proposed constitutional changes to extra hurdles should not be seen as legitimising those changes as much as trying to prevent them as much as we possibly can.
A further possible concern is that, if the suggested roadblocks (such as referendums) must be cleared in order to enact a major intrusion into our rights and freedoms, wouldn’t the same roadblocks make it equally difficult to get rid of intrusions that have already been passed? Theoretically, this is true; however, Britain has just achieved one of the biggest acts of repeal in its constitutional history: its decision to leave the European Union. In fact, it was only a referendum that could bring about this momentous result, for had the matter been left entirely to the political class we would still be a fully paid up member of the bloc. Thus, once the people are actually consulted, not only have they found that it has been entirely possible to rid themselves of odious political arrangements, sometimes it is the only way to do so.
It is true, of course, that if a government actually does obtain a referendum result in favour of abolishing, say, the right to protest, then the long term effect could be to entrench that abolition more than would be the case if such a measure was passed by Parliamentary authority alone. Indeed, for a generation or more, any government or party keen to retain powers crushing protests would be able to point more convincingly to the “will of the people” simply by citing the referendum result.
If, however, a clear majority (or, for that matter, even a significant minority) of the people votes directly to restrict their rights and freedoms then ultimately this betrays a major cultural problem, not a procedural one. If a majority of the people want to restrict the freedom of speech, if they want to abolish the right to protest, or if they do not care about the once-hallowed matters of habeas corpus or double jeopardy, then there has been a fundamental loss of values at the grass-roots. As we said earlier, freedom, ultimately, can come only from the bottom-up; constitutional provisions can help to provide some self-reinforcing mechanisms to preserve freedom once we have it, but ultimately any grave loss of values will never be addressed by mere tweaks to constitutional procedure.
Turning now to the point of view of the democratic mainstream, the overwhelming objection to our proposals is that they appear to allow an unelected Queen to frustrate the will of an elected government. There are several responses we can make to this.
First, frustrating the government is precisely the point. Even from the point of view of conventional thinking, democracy is not an unqualified good, nor is it an end in itself. Even the most starry-eyed of democratic zealot can imagine horrendous laws that no government should ever be able to pass. For instance, an Act of Parliament mandating the shooting of all red haired people on sight could never be legitimised by a government citing its electoral mandate. More mundanely, such governments can succumb to populist excess or short term thinking given that political priorities are largely determined by the electoral cycle. Thus, most constitutions provide for at least some restraint of democratic bodies, such as a bill of rights or oversight of legislation by a body that is either unelected or subject to a different electoral procedure (such as the German Bundesrat). Given this, an unelected Queen as one element of a much larger system is not as much of an outrage as it may first appear.
More generally, the proposal suggested here focuses our attention on what it actually means for the monarchy to be “above politics”. It seems fairly obvious that such a commitment should entail no royal involvement with the day-to-day affairs of government, nor should the Queen restrict the passage of “ordinary” legislation. But it shouldn’t mean utter public silence with regards to anything that happens in the political process. Taken to its logical extreme, such a hyper-minimalist stance suggests that the Queen’s subjects could be shooting at each other in a civil war while she sips tea at Windsor. Instead, being “above politics” should mean that the unbroken lineage of the monarchy, sustained over centuries, is a symbol of continuity of Britain and British values that transcends the specific concerns of time and place. Our suggestion here for a formal, procedural role designed to protect the integrity of the constitutional system from usurpation is entirely congruent with this view.
In any case, however, ours is still a relatively modest proposal. For even if the Queen was to cross over into counselling her ministers on the substance of particular constitutional changes, should those ministers come back with a clear mandate in the manner we have described here then she must relent. Further, when it comes to constitutional crises or stalemates, she should be there to lend weight to credible options for unbinding the knot – weight which may influence public opinion one way or another – but her ability to compel a particular course of action would be limited.
Second – and to reiterate what we just said – most of the hurdles that we have suggested involve the government seeking a stronger, democratic mandate. The Queen should not have the option of rejecting any proposal on a whim. Thus, if anything, democracy would appear to be enhanced rather than frustrated.
Third, and finally, is the related objection that people elect the government to make difficult, constitutional decisions on their behalf as their “representatives”, and so there should be no reason for subjecting particular matters to referendums. This, of course, is a favourite regurgitation of the political class. Their preference is for the voters to crawl out from hiding once in a while, mark the ballot papers to rearrange the deck chairs a little before disappearing for the next five years so as to leave the business of government to the “educated” elite. Civilisation would come to an end if the plebs were allowed to have a more detailed say on the future direction of the country. After all, just look at what happened with Brexit!
However, even if we ignore such hyperbole, it is one thing to say that “representatives” are elected to decide where to build hospitals and motorways; it is quite another to suggest that those same people should be trusted with determining major changes in the relationship between the citizen and the state, either incrementally or in one, fell swoop. The notion that they are so elected has served merely to insulate the governors from the governed; instead of serving as the first among equals, the rulers have elevated themselves into a separate class with its own preoccupations and priorities – a class which mostly got its own way for twenty-five years after the collapse of socialism and communism served to neuter major, ideological differences. Hence, their utter shock at recent, populist revolts such as the vote for Brexit (and, in the US, for Donald Trump) – shocks that might have been avoided if some mechanisms had been in place to ameliorate the cultural disconnection.
As we said at the beginning of this essay, much of the foregoing discussion is likely to be academic given that present circumstances are unlikely to allow for even this modestly expanded role of the monarchy. Indeed, Britain is probably now too culturally divided to ever agree on the matter – a degree of division which, incidentally, rules out the possibility of nationwide referendums resolving major issues. Moreover, for libertarians who are committed to eradicating state power as much as possible, these suggestions seem like small potatoes. Hence, political decentralisation is likely to be a more realistic and fruitful path forward. Nevertheless, it does serve as an example of a modest achievement that could be made by balancing and tempering the power structures within the state apparatus instead of seeking their complete dissolution, a balance that is in accordance with the history and tradition of British institutions.
However, when all is said and done, we must reiterate the fact that the preservation of freedom can come from one place only: the passion of the people themselves for their liberty. As we said earlier, a particular social or constitutional structure may furnish mechanisms that make it more difficult for liberty to be infringed, but no such system, alone, can ever guarantee its safety. The role for the monarchy suggested here could only ever work if the sustenance, popularity and legitimacy of the monarchy relied upon people seeing that role fulfilled. So while, if I was king, I might well try to grow into this role as much as possible, there are no short cuts to freedom – it has to come from the bottom-up.
* * * * *
1For a detailed criticism of Elizabeth in this regard, see Sean Gabb’s remarks at the time of the Diamond Jubilee. Since her uncle, the unreliable and interfering Edward VIII, was booted off the throne for the dubious excuse of his marriage plans, one has to wonder whether there has been a tacit understanding between the Palace and the government: that the Queen should keep schtum and sign on the dotted line, or ways will be found to get rid of either her or the institution of monarchy itself.
2Some appointments, such as to the higher levels of the judiciary, may not result from a direct ballot, but are usually subject to nomination by and/or oversight of the other branches of government, which have themselves been elected.
3Somewhat ironically, however, the British constitutional system was one of Montesquieu’s influences for his “separation of powers” model.
4For instance, the President can veto a bill before it becomes law (which Congress can override with a qualified majority vote in both houses), and the constitutionality of the Act can be subject to judicial review.
5Walter Bagehot, The English Constitution, Second Edition, H. S. King (1873), 85.
6By convention, government ministers can sit in the House of Lords, but, today, this is highly unlikely for the major offices of state.
7In fact, for this reason, the spectre of a confidence motion can actually benefit of a weak government of an unpopular party by serving to bring rebels into line. Such was the case when John Major sought ratification of the Maastricht Treaty in 1993, one of the several occasions on which the Conservative Party was divided over the question of Europe.
8Council of Civil Service Unions v Minister for the Civil Service, (1984) UKHL 9. The government ended up winning the case on the grounds of “national security”. Within days of the Labour victory in 1997, Foreign Secretary Robin Cook announced the reversal of Thatcher’s ban, again using the Royal Prerogative.
9Having said that, the recent COVID debacle has shown that “human rights” seem to be much easier to invoke in cases involving convicted criminals, terrorist suspects and illegal immigrants than when the entire population is subject to house arrest.
10Thoburn v Sunderland City Council, (2002) EWHC 195 (Admin).
11In fact, in this era of hypersensitivity to democratic legitimacy, a constitutional crisis would ensue even if ministers advised the Queen to withhold the Royal Assent from a bill that had the backing of Parliament.
12Thoburn v Sunderland.