The Platinum Jubilee and future of the monarchy

Queen Elizabeth II this year celebrates her Platinum Jubilee, commemorating 70 years as monarch. UCL recently hosted an event to discuss why we have jubilees, what they say about monarchies, what the process of starting the next reign will look like, the future of the monarchy at home and abroad, and what lessons can be learned from other European monarchies. A summary of the discussion is below.

On Thursday 17 March 2022, UCL hosted a webinar entitled The Platinum Jubilee and the Future of the Monarchy, chaired by Professor Robert Hazell, founder of the Constitution Unit. Robert was joined by four panellists: Dr Bob Morris, an Honorary Senior Research Associate at the Unit, Dr Craig Prescott, Lecturer in Law at Bangor University, Dr Carolyn Harris, a royal historian at the University of Toronto, and Professor Helle Krunke, Head of the Centre for European and Comparative Legal Studies at the University of Copenhagen. The webinar looked to the future in two respects; starting with the Accession of the new King after the Queen dies, and then looking further ahead to address the practicalities of the Prince of Wales’ vision for a smaller Royal Family, the impact of the accession on the Commonwealth Realms, and the continuation of the monarchy itself. This post is a summary of some of the key points made during the session.

Demise of the Crown

On Demise – the legal term for the transfer of the Crown upon the death of the monarch – the Accession Council – a ceremonial body formed following the death of one monarch to proclaim the new one – recognises the seamless transfer of executive power from one monarch to the next; and the coronation celebrates and legitimises the accession of the new monarch. Bob Morris suggested the process is likely to be much the same as it was when the Queen acceded in 1952: the Privy Counsellors will meet at an Accession Council along with the High Commissioners of the Commonwealth Realms, the Lord Mayor of London, and the Court of Aldermen, to make a proclamation declaring Prince Charles, the Prince of Wales, to be King and to receive his oath. The new King will address the nation on the day after Demise, and visit Cardiff, Edinburgh, and Belfast in the days following to present a united vision for his Kingdom. The funeral for the Queen will be held at Westminster Abbey (the first since 1760), before an interment in St Georges’ Chapel, Windsor. Questions remain as to whether any part of the Accession Council will be televised, whether the oath will change, and how over 700 Privy Counsellors will be enabled to attend and sign the Proclamation.

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Setting up the COVID-19 inquiry: an expert view

The inquiry into the COVID-19 pandemic is due to start work in the spring, chaired by Baroness (Heather) Hallett, a former Court of Appeal judge. It will be one of the most complex inquiries in legal history, and highly charged politically, with over 150,000 deaths so far, and the pandemic far from over. In January, the UCL Political Science Department hosted an expert panel discussion to pool advice on how best to set up a complex inquiry to ensure that it works speedily and efficiently, victims feel they have been heard, and the findings are accepted as legitimate. Ioana Măxineanu summarises their contributions.

On January 13th, the UCL Political Science Department hosted an online seminar entitled Setting Up the Covid Inquiry. The event was chaired by Robert Hazell, and brought together three distinguished panellists previously involved in high profile inquiries: Lord (Nicholas) Phillips, chair of the BSE Inquiry (1998-2000); Margaret Aldred, secretary of the Iraq Inquiry (2009-2016); and Brian Leveson, chair of the inquiry into press regulation (2011-2012).

This post summarises the initial contributions of the three speakers. The full event, including a very informative and interesting Q&A, is available on the Political Science Department’s YouTube page.

Lord Phillips

Lord Phillips started by explaining the background of the BSE Inquiry. In 1986, the first case of BSE (mad cow disease) was identified in England. The disease deforms the proteins in the brain, and is inevitably fatal. The Conservative government appointed an expert committee to advise on the possibility of humans contracting the disease. The committee concluded that the risk was remote, a view the government passed on to the public. Unfortunately, that was wrong. In 1995, the first death of a man who contracted the human equivalent, Creutzfeldt–Jakob Disease, was identified. Many felt misled by the previous guidance.

In late 1997, a non-statutory public inquiry was set up by the incoming Labour government. Lord Phillips was provided with two assessors: June Bridgeman, a retired senior civil servant, and Professor Malcolm Ferguson-Smith, a geneticist. They were full members of the tribunal, so they could write appropriate sections of the report. Paul Walker, a barrister in Lord Phillips’ chambers, was appointed as counsel to the tribunal.

The inquiry’s terms of reference required Lord Phillips to report within a year, which he had to extend twice. In the end, the Inquiry took nearly three years. It looked at 10 years of government activity, with a huge amount of documents. A large team of young people, many of them students, was recruited to help digest the documents.

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Should we codify the royal prerogative?

com.google.Chrome.vxw6lk.jpgThe 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

A cross-party committee of the Privy Council should be established to seek consensus on the terms of Brexit

Following last week’s general election result Theresa May is likely to face severe difficulty in negotiating Brexit successfully unless she seeks cross-party consensus. In this post Jim Gallagher suggests that consensus could be achieved through a special committee of the Privy Council, the membership of which would reflect the House of Commons and also contain representatives of the devolved legislatures.

It will be impossible for a minority government with a weak Prime Minister to negotiate Brexit successfully, against a ticking clock, if it deals with the issue in the normal way of British politics. Government cannot formulate policy privately, then seek to sell it to the House of Commons while talking fitfully to the devolved administrations. Theresa May’s administration can be held to ransom, if not by the DUP, by factions in her own party. The opposition will sense blood and might be keener to bring down the government than do a European deal. The devolved will stand on their rights to consent. So even if she can negotiate some agreement with Brussels, she will fail to secure a domestic legislative consensus and the deal will fail.

The government has already used up two of the 24 months allowed for this negotiation and succeeded only in weakening its position. As a result, the UK is faces a high risk of crashing out the EU in an unmanaged way.

Leaving the EU presents the British state with an unprecedented problem. It must be handled in an unprecedented way. Other countries might consider a government of national unity to give the negotiators authority to commit to a deal. We seem too partisan for that, but some senior figures in both government and opposition parties are already saying openly that a cross-party consensus will need to be built on this question. To build such a consensus, however, is anything but straightforward and will require a degree of trust and information sharing that is wholly alien to our normal way of doing government business – to which Westminster and Whitehall will default unless something radically different is devised.

If government tries to develop policy behind closed doors, keeping the devolved at arms-length and negotiating tactically secure a day-to-day majority in parliament, it will almost inevitably fail. There is certainly very little chance of completing the process in time for the agreement to be settled and ratified in Europe as well as here.

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The Charter review should take steps to enable the BBC to work independently and without government interference

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With the BBC’s Royal Charter up for renewal Lord Fowler, who chaired the Lords committee scrutinising the last review, came to The Constitution Unit to talk about the future of the BBC. He argued that the Royal Charter affords too much power to the government and that the BBC should therefore be established as a statutory corporation, enabling it to work independently and without government interference. Jack Sheldon reports.

Four days after the general election it was widely reported that the new government was ‘at war’ with the BBC ahead of the renewal of its Royal Charter, due by 2017. Downing Street sources were quoted as saying that the new Culture Secretary, John Whittingdale, intended to ‘sort out ’ the national broadcaster and some media outlets indicated that the future of the licence fee was in doubt. Whilst David Cameron has since dismissed these suggestions much uncertainty continues to surround the BBC’s future governance structure, funding and programming.

As Robert Hazell has explained on this blog the formal responsibility for Charter renewal lies with the Privy Council, which can be expected to approve without discussion an Order in Council drafted by the government. It is not necessary for the Charter to be taken through any formal parliamentary process, though select committees in both Houses have embarked on inquiries (to be undertaken by the Culture, Media and Sport Committee in the Commons and the Communications Committee in the Lords). On 14 July Lord Fowler, who chaired the Lords committee last time the Charter was up for renewal in 2005-06, led a debate in the upper house titled ‘Future of the BBC’ in which he warned that the corporation ‘is under unprecedented attack’. Fowler came to The Constitution Unit on 19 October to talk about the renewal process and his hopes for the current review.

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