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The British monarchy may, at first glance, have little or nothing to do with the constitutional crisis being precipitated by Brexit. However, as three constitutional lawyers have recently argued, if a Prime Minister chose to trigger Article 50 of the Lisbon Treaty by making a formal announcement to Brussels, he or she would be doing so under royal prerogative powers. These are the same royal prerogative powers conventionally derogated to the government to make treaties; they are notionally inherent in the sovereign but, in practice, they are exercised by the Prime Minister and other ministers. Should the royal prerogative be used to implement Brexit, this would undoubtedly lead to calls for royal prerogative powers to be scrapped, and this has far-reaching implications. The UK is a state in which, formally, the monarch is sovereign but, in practice, Parliament usually exercises sovereign power under an implicit assumption that the people are sovereign. If royal prerogative powers were removed from the Prime Minister it is unlikely they would be returned to the direct exercise of the sovereign – this would go against the entire historical trajectory of the British constitution. It is more likely that laws would be put in place that allow Parliament to determine when the Prime Minister can use prerogative powers. A similar situation pertains in Ireland, where the President has powers that he can only exercise on the advice of the Daíl. This would, effectively, diminish the constitutional role of the sovereign to something more akin to the King of Sweden, who does little more than accredit ambassadors. However, it is likely that a dispute over prerogative powers will lead some to question whether the sovereignty of the people should be embodied explicitly in a written constitution. This is what the SNP called for in their proposed constitution for an independent Scotland.
It is to be noted that the sovereignty of the people is not inconsistent with the existence of monarchy; the SNP wants Elizabeth II to continue as head of state of an independent Scotland but not (strictly speaking) as sovereign; she would be ‘Queen of Scots’ but the sovereignty of Scotland would not inhere in her person. Many European monarchies also have written constitutions that explicitly identify the people as sovereign. However, if the monarch does not embody sovereignty this threatens the primary advantage of monarchy in a modern democracy: the monarch is an apolitical guarantor of the continuity of the state in the event of the collapse of elected government. In theory, the monarch could appoint caretaker ministers in such a crisis. If the monarch is no more than a symbolic embodiment of the sovereignty of the people and does not possess actual sovereignty, how can the monarch retain this role? An elected head of state with actual constitutional powers seems more useful in such a situation than a symbolic monarch without sovereignty. On this interpretation, an inactive constitutional monarchy is its own undoing; if it derogates prerogative powers to political leaders it imperils its own survival because when those prerogative powers are challenged, the existence of the monarchy will be challenged too.
But it gets worse: there is another way in which the sovereign could be dragged into the Brexit fiasco. In an article just published in Law Quarterly Review, ‘Royal Assent in the British Constitution’, Graham John Wheeler argues that, in theory, a Prime Minister could advise the sovereign to refuse Royal Assent to a bill. This has happened in Commonwealth dominions, where Prime Ministers have advised Governors General to refuse Royal Assent, and although there is no mechanism for it to happen in the UK, it remains a possibility. It becomes more than a remote possibility in the event that Parliament votes to block Brexit – as many now consider likely, given the pro-Brexit majority in the House. If the next Prime Minister is – as seems likely – a confirmed ‘Brexiter’, could a pro-Brexit Prime Minister advise the Queen to refuse Royal Assent to Parliament’s rejection of Brexit, on the grounds that the voice of the British people trumps the sovereignty of Parliament? Here, perhaps, is the crux of the constitutional crisis we are facing. Such a scenario would discredit the monarchy in the eyes of many, and the Queen’s duty to act on the advice of her ministers would come into direct conflict with her cherished political neutrality. I would not be surprised if she chose abdication in such a scenario.
On a personal level, I should very much like to see the UK continue as a constitutional monarchy because I value the stability and apolitical leadership that monarchy affords – but Brexit has the potential profoundly to compromise both the value of the monarch as guarantor of stability and as a head of state above politics.