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United Kingdom: Legal Basis for The Constitutional Monarchy

One of the most significant features of the majesty of the law as the queen of humanities is the elegance of the Rule of Law as the foundation of humanity. 

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King Charles III in first Parliament speech on September 12 pledges to follow example of selfless duty by ‘darling late mother’ [ Photo © AFP ]

Do not be fooled by constitutional theories (the ‘paper  description’)  and  formal  institutional  continuities  (‘connected  outward  sameness’)  – concentrate  instead  on  the  real  centres  of  power  and  the  practical  working  of  the  political system (‘living reality’).  Walter Bagehot (1867)

This article commences with profound appreciation of Her Majesty the late Queen Elizabeth II and her service to the Nation and concludes with every good wish for the reign of His Majesty King Charles III.

At this turning point in the history of the United Kingdom the most fundamental truth and point of clarity is that the King reigns (as head of nation) but does not rule.  This legal profundity is founded on the philosophy of John Locke ( 1632-1704) who propounded the concept of the “Moderate Monarchy” – a new political idea – that infused certain limitations of power on the Monarchy based on the principle that laws should be enacted for the common good of the citizenry.  Having introduced this approach,  Locke advocated residual powers for the sovereign, ascribing discretion to the sovereign to change or amend laws – again for the common good -a practice  now known as the Royal Prerogative. 

It is the Parliament that rules and the King is obliged to follow the advice of Parliament. The King has meetings once a month with his Privy Council – his advisory body – and approves Orders in Council that emanate from the consultations with and advice of The Privy Council.  The King also performs, with the advice of the Parliament,  several key functions such as appointing the Prime Minister and senior judges and  receiving  incoming and outgoing ambassadors. The King also signs State papers which he receives daily and conducts weekly meetings with his Prime Minister as well as other meetings regularly  with senior officials.

Additionally, the Monarch can declare war and peace; sign treaties; dissolve Parliament; confer peerages and knighthoods.

In 1689 co-rulers of England King William III and Queen Mary II signed into law the English Bill of Rights.  For the first time in English history the bill adumbrated explicit constitutional and civic rights and it is believed by many that it was the genesis of the constitutional Monarchy (where the monarch’s discretion is limited) and Parliamentary power over the Monarchy. Arguably, The English Bill of Rights greatly influenced the draughtsmen of the U.S. Bill of Rights. The English Bill of Rights came into being after the ouster of King James II who was largely considered autocratic and was subsequently ousted.  Ineluctably therefore the document identified the misdeeds of James II.  The English Bill of Rights clearly ascribed to the king or queen the exalted position of head of State but circumscribed some of his or her powers which were considered as limited by law. Some of the rights contained and embodied in The English  Bill of Rights were: freedom to elect members of Parliament, without the king or queen’s interference; freedom of speech in Parliament; freedom from royal interference with the law; freedom to petition the king; freedom to bear arms for self-defence; freedom from cruel and unusual punishment and excessive bail; freedom from taxation by royal prerogative, without the agreement of Parliament; freedom of fines and forfeitures without a trial; freedom from armies being raised during peacetimes. The English  Bill of Rights also prohibited Catholics from becoming the Monarch and required that Parliament be convened regularly.

The Monarchy was obligated to rule under the consent of Parliament, with the recognition that the people had individual rights. Therefore, it would not be incorrect to say that in the  British constitutional Monarchy, the king (or queen)  plays a largely ceremonial role. However, the monarch stands out as the symbol and inspiration of national unity and earns the respect of the local and international community as an apolitical figure.  The famous former editor of The Economist Walter Bagehot described the monarch as the “dignified part of the Constitution”.

At law, there can be no civil or criminal proceedings against the sovereign. It’s par for the course that this exemption notwithstanding, the King or Queen (as the case may be) is careful to act within the bounds of law and tradition. The genesis of this tradition arguably lies in The Magna Carta Liberatum (Great Charter) signed between King John and a group of barons in 1215 laying out the freedoms of individuals.  The document was composed of 63 Articles, one of which said the king must follow the law and could not simply rule as he wished. The Magna Carta stands as the monument of the constitutional history of England.

One of the legacies, and indeed a blessing of the Moderate Monarchy as espoused by John Locke is that between the Monarchy and parliament, these two institutions effectively preclude the infestation of insidious and invidious autocracies in the community. A corollary to the harmonious blending of the two institutions is The Rule of Law.  One of the most significant features of the majesty of the law as the queen of humanities is the elegance of the Rule of Law as the foundation of humanity.  The Rule of Law is the hallmark of democracy.  Regrettably, at the present time, the aspirations people had of equal rights and representation by the people of the people for the people have gradually  eroded into a quagmire of ambivalent populism that is shrouded in mendacious and self-serving casuistry. A whole new phenomenon called illiberal democracy has been identified by the intelligentsia as a definition of this  phenomenon. The hallmark of illiberal democracy is the ignoring by those democratically elected by the people – in many instances those that have been re-elected or reaffirmed through referenda – of constitutional limits on their power, thereby depriving their citizens of basic rights and freedom.

The Rule of Law, which is entrenched in the unwritten British Constitution reflects the quintessence of Constitutional Monarchy. To this end Lard Bingham has attempted a definition of the Rule of Law thus: “all individuals and organizations within the State, whether public or private, are bound by, and entitled to the benefit of laws prospectively promulgated and publicly administered in the courts”.  This definition can be expanded to several corollaries. Laws should be intelligible.  They should not be couched in a plethora of pages in convoluted language and expanded to hundreds of regulations.  Nor should they be orally delivered  through speeches and pronouncements.  Any written amendment to a law should be brought to the attention of the people.  A society should be governed by law and not by discretion granted to or assumed by public officials.  Additionally, they should be equally applied.  To expand further, laws should not favour a particular category of individual.  Past examples are the depravity of slavery, servanthood  and the arbitrarily perceived  inferiority of women in some jurisdictions.

It can be argued that the sustenance of the modern-day British Monarchy and its dignified relationship with the Parliament would continue to ac as a buffer against populism, illiberalism, and autocracy.

Dr. Abeyratne is the author of Aviation and the Carbon Trade, Aviation and the Environment, and Aviation and Climate Change: In Search of a Global Market Based Option.

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