Prince Andrew: six lessons for modern monarchy

Posted on December 6, 2019 by The Constitution Unit

Prince Andrew has withdrawn from public life and his royal duties. Robert Hazell, who has just completed work on a comparative study of European monarchies, offers six lessons that the monarchy can learn from the events that led to the prince leaving a front-line royal role.

Following the announcement that Prince Andrew is to withdraw from public life, we have been putting the finishing touches to a book about the constitutional monarchies of Europe, to be published next year by Hart. So it seems a suitable moment to reflect on some of the comparative lessons we have learned, and to ask whether the situation Prince Andrew finds himself in could have happened in any of the other European monarchies. The short answer is that it could have happened in any one of them, and the response would have been equally swift. We put our royal families on a pedestal, and expect them to be models of good behaviour – something we do not seem now to expect of the politicians who are our real rulers. So one of the many paradoxes of monarchy is that this seemingly unaccountable institution, based upon heredity, in practice has proved to be quite closely accountable: a point returned to at the end of this post.

Our comparative study looked at seven other constitutional monarchies in Europe, in addition to the UK. In 1900 every country in Europe was a monarchy, save for just three: France, Switzerland and San Marino. By 2000 most countries in Europe had become republics, with the only exceptions being the Scandinavian monarchies of Denmark, Norway and Sweden, the Benelux countries of Belgium, the Netherlands and Luxembourg, Spain and the UK. These monarchies have survived partly for geopolitical reasons, most of the other European monarchies having disappeared at the end of the First or Second World Wars. But they have survived also by being quick to reject royals who step out of line, or in Prince Andrew’s words ‘let the side down’: modern monarchy depends ultimately on the support of the public, and it has to be keenly responsive to public opinion. So what are the lessons to be learned from these other monarchies; and what risks do they face in the future?

Lesson One: keep the Firm small. The greater the size of the royal family, the greater the risk that one of its members may get into trouble and cause reputational damage; and the greater the risk of criticism about excessive cost, and too many hangers-on. So in Norway the royal family consists of just four people: the King and Queen, Crown Prince and Princess. And in Sweden last month the King, under political and parliamentary pressure, removed five of his grandchildren from the royal family, and dropped their HRH titles. But the size of the royal family will vary depending on the size of the country concerned. The UK, with a population more than 10 times that of Norway, needs a larger royal family to fulfil all the demands for royal patronage and visits. The Norwegian royals carried out 866 public engagements last year; the British royal family conducted over four times that number, with around 3,800 engagements. And the Firm is four times the size, with 15 members of the family undertaking public duties (reduced to 14 now that Prince Andrew has withdrawn). Continue reading →

Monitor 73 — On the brink: Brexit, the election and the state of British politics

Posted on November 13, 2019 by The Constitution Unit

The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. Since the last issue, a new Prime Minister has been appointed, a new Speaker has been elected, a new Brexit deal has been negotiated, and a new parliament is imminent, as a general election campaign gets into gear this week. Meg Russell and Alan Renwick review the last four months of constitutional events in what is also the lead article from Monitor 73. The full edition can be found here.

With a general election scheduled for 12 December, the UK could be at a crucial turning point. Or, of course, not: with the polls uncertain, another hung parliament is a real possibility. The UK appeared closer to agreeing terms for leaving the EU in late October than previously, after Prime Minister Boris Johnson negotiated a revised deal and the House of Commons backed his Withdrawal Agreement Bill at second reading. But when MPs refused to accept Johnson’s demand that they rush the legislation through in three days, he refused to accord them more time, and demanded – as he had twice in September – a general election. A further extension of the Article 50 period – which Johnson had previously suggested he would rather ‘die in a ditch’ than allow – was agreed on 28 October – just three days before the 31 October deadline. That being in place, Labour reluctantly agreed to an election, which it is fighting on a pledge to hold another Brexit referendum. The Liberal Democrats want to revoke Article 50 in the unlikely event that they secure a majority, or otherwise hold a referendum.

In recent months much in British politics has already felt close to breaking point. While Theresa May fared badly in navigating parliament as the leader of a minority government (only in the final stages seeking agreement with other parties), Johnson seems actively to have sought confrontation with parliament. This is, to say the least, an unorthodox strategy in a system where the government depends on the Commons’ confidence to survive. It is the very reverse of what would normally be expected under a minority government. Such an approach lasted, at least briefly, due to MPs’ fears of triggering a vote of no-confidence – which might have delivered Labour’s Jeremy Corbyn to Downing Street, or indeed allowed Johnson to ‘crash’ the UK out of the EU on a ‘no deal’ basis. There were even suggestions that he would refuse to resign, and ‘dare’ the Queen to sack him (see page 15), if parliament sought to put an alternative prime minister in his place.

In his short time in office, Johnson has faced very limited parliamentary scrutiny, including just three sessions of Prime Minister’s Questions. He made and cancelled no fewer than three arrangements to appear before the Commons Liaison Committee, much to the frustration of its chair. Most controversially, of course, he sought to prorogue parliament for five weeks – an action ruled unlawful by the Supreme Court (see page 14). Despite the ruling, scrutiny was curtailed by the summer recess, the time lost due to this ‘prorogation that wasn’t’, plus a further short prorogation to facilitate a Queen’s Speech (described as a ‘sham’ by the Unit’s Robert Hazell, given Johnson’s evident desire for an election). The attempted prorogation, and loose talk about refusing to resign, have left many people alarmed that a constitution heavily dependent on convention has suddenly appeared fragile, when faced with players who show little regard for unwritten rules. Continue reading →

Should we codify the royal prerogative?

Posted on November 1, 2019 by The Constitution Unit

The recent controversy about the unlawful attempt to prorogue parliament and the judicial review that followed has given rise to renewed calls for the codification of the royal prerogative or the enactment of a written constitution. Anne Twomey argues that there are benefits to a looser prerogative power, and that experience in other countries has shown that codification should be undertaken with caution.

The recent controversy about the prorogation of parliament and the judicial review of its exercise in Miller No 2 (also known as Cherry/Miller) has again given rise to calls for the codification of the prerogative or the enactment of a written constitution.

A written constitution is not necessarily an antidote for ambiguity or interpretative discretion. The same issues that arose in Miller No 2 could also arise under a written constitution. For example, section 5 of the Australian Constitution confers upon the Governor-General of Australia the power to prorogue the federal parliament. In doing so, however, it does not delineate the scope of the power to prorogue and whether there are any internal limits on it. The term ‘prorogue’ would have to be interpreted in its historical context, as a prerogative power, and in a manner that is consistent with the principles that are derived from the constitution, including the principles of responsible and representative government

So what would happen if an Australian government requested the Governor-General to prorogue parliament for a significant period, in circumstances where it appeared to have lost confidence and to be seeking to frustrate the ability of parliament to fulfil is legislative and accountability functions? It is likely that Australian courts would face exactly the same issues as the UK Supreme Court did in Miller No 2, regarding justiciability, the scope of the power to prorogue and the application of fundamental constitutional principles. Simply setting out the existing power in legislation or a written constitution does not, of itself, resolve all questions as to its application.

While most prerogative powers have now been abrogated by legislation, there is usually a good reason while those that have survived as prerogative do so. It may be because of the need to exercise them in a quick and decisive fashion. Sometimes, codifying prerogatives in legislation, particularly where prescriptive conditions are included, can exacerbate problems about their use. Disputes are likely to arise about the interpretation of the application of the conditions, courts are likely to become involved in enforcing them, and the delay involved in litigation is likely to exacerbate any political crisis. Continue reading →

Miller 2/Cherry and the media – finding a consensus?

Posted on October 14, 2019 by The Constitution Unit

Despite the UK Supreme Court managing to find unanimity regarding the legality of the attempted prorogation of parliament in September, the rest of the country, including its national newspapers, appeared to divide along Leave/Remain lines regarding the correctness of the judgment. Sam Anderson and Robert Hazell analyse how the national press discussed the political and constitutional questions raised by the judgment.

The government’s resounding defeat in the Supreme Court is one example of the rolling constitutional drama that breaks in the news almost daily. However, when it comes to media coverage of these stories, the key consideration is almost always ‘What impact will this have on Brexit?’ Issues are reported through the Leave/Remain divide, with popular news outlets framing events for their audiences. This post seeks first to examine the extent to which this has occurred with the prorogation case by looking at eight national newspaper editorials, and the way they have framed the political implications of the judgment. Then, using the same editorials, we will examine whether there is consensus around important constitutional issues that have arisen in this case, such as the proper role of the Court and the importance of the independence of the judiciary. We coded the editorials on both these questions, and found that the case was framed by almost all the papers to some degree through a Brexit lens, and that there is a lack of consensus on the constitutional issues.

The political questions

The first issue was coded on a scale of -5 to five. Zero reflects the position of the Court: that the judgment concerned the specific prorogation issue, but was neutral with regards to the political implications of the decision. Editorials which argued the judgment would have negative political implications for the government and the Brexit process were assigned a negative number up to -5, depending on the extent they engaged in direct criticism of the judgment, and promoted the government’s policy of getting Brexit done. Editorials that argued that the judgment would have positive political implications for the government and Brexit process were assigned a positive number up to five, depending on the extent to which they were directly critical of the government and its Brexit policies. All eight articles were independently coded by two researchers. Where discrepancies occurred, a mid-point was taken.

Paper	Implications for Brexit
Sun	-5
Mail	-4
Express	-2
Telegraph	-1.5
Times	0.5
FT	2
Independent	3
Guardian	4.5

Looking qualitatively, there were three overarching positions taken. Of the eight publications, four were critical of the judgment and its potential political implications. The Sun described the Prime Minister as the victim of a ‘staggering legal coup’ and accused the Court of having done the bidding of Remainers. The Daily Mail was less virulent, but still argued the case was a victory for Remainers, and emphasised how the judgment allowed MPs (including ‘masochistically intransigent Eurosceptic zealots’) to continue to try and block the will of the electorate. The Daily Express was less direct but warned politicians that the case should not be used as a way to try to avoid Brexit. The Daily Telegraph made the only substantive comments on the case, noting pointedly that the Supreme Court overruled the High Court’s finding of non-justiciability, and gave some explanation for the prorogation: the government had only been ‘trying to carry out the democratic will’ of the people as expressed in the referendum. Continue reading →

Comparing European monarchies: a conference first

Posted on March 22, 2019 by The Constitution Unit

In early March the Constitution Unit convened a conference of 25 leading experts on the monarchies in Europe. It had been two years in preparation, and was the first of its kind: monarchy is not a fashionable subject in academia. The conference was organised by Robert Hazell and Dr Bob Morris, the Unit’s longstanding expert on Church and State, together with their research volunteer Olivia Hepsworth. Here they explain the background, and some of the main findings from the conference.

Monarchy as an institution does not get much academic attention. This is surprising when one considers that one third of the population of the EU live in states which are monarchies. These include some of the most advanced democracies in the world, countries like Denmark, Norway, Sweden and the Netherlands. And far from being regarded as an anachronism, monarchy in these countries enjoys popularity ratings which politicians would die for. So there is a conundrum worth exploring: is the survival of monarchy in northern Europe the product of historical accident or constitutional inertia, or does it add something to the institutions of representative democracy? And if so, what is its added value? Continue reading →

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Tag Archives: Monarchy, church and state

Prince Andrew: six lessons for modern monarchy

Should we codify the royal prerogative?

Miller 2/Cherry and the media – finding a consensus?

Comparing European monarchies: a conference first

The Constitution Unit Blog

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