[A-List] UK state: constitutional deform

["Michael Keaney" <michael.keaney@xxxxxx>]

While in no way endorsing the bourgeois empiricist pro-British Charter
88-type perspective that informs this analysis, there is enough factual
material and decent analysis here to make it worth forwarding, so that those
with less appreciation of the sham that is democracy in the UK can acquaint
themselves with the unwritten constitutional niceties that encompass the
conduct of authoritarian statism British style.

------

He's hiding behind her
ADAM TOMKINS
The Herald, May 04 2004
The Big Idea: Ban the Queen, Tony Blair's Human Shield

There are many arguments against monarchy. The sheer unfairness of having a
head of state who inherits rather than merits office. The degrading rituals
of pomp and servility that accompany majesty. The long history of tax
avoidance practised by members of the royal family. The weirdnesses of the
present generation of Windsors, from the uncompromisingly pre-modern taste
in architecture and preference for dangerous dogs to far more disturbing
tales of humiliation and worse in various of their private households.

No doubt all of these factors help to make the case against the monarchy
more popular. But even if none was true - even if the first family was
composed of the brightest and best of Britons - there would still be a
compelling case against it. This is because monarchy is fundamentally
incompatible with democracy.

This is not because the Queen is unelected. The heart of Britain's democracy
does not beat to the drum of having all office-holders elected by the
people. Not even the prime minister is directly elected. The nature of
Britain's democracy is parliamentary, not popular. And it is because of the
way that the monarchy undermines our traditions of parliamentary democracy
that it must be excised. The core idea of our system is that the government
of the day is accountable to parliament. Prime minister's question time,
debates in the chamber and the less well publicised but still critical work
of parliament's select committees are all examples of this idea in practice.

Making the government accountable is the foundation of our constitution.
Parliament plays the leading role, but one effect of the constitutional
reforms introduced by the Blair government (especially the Human Rights Act)
is to enhance the position of the courts so that, along with parliament, the
judges must now also help to subject the government to account. Parliament
ensures democratic accountability while the courts ensure that the
government respects our human rights and adheres to the rule of law.

At least, such is the theory. These structures of accountability are all
well and good, except that there is one major obstacle standing in the way
of both. That obstacle is the Crown. The Crown possesses unrivalled power in
the British constitutional order. These days the bulk of that power is
exercised, not by the monarch directly, but by government ministers. Both
forms of Crown power - the Queen's personal powers and ministers' powers -
seriously undermine our systems of accountability.

It is fashionable to see the Queen as a mere figurehead, having historic
authority but no real powers. Nothing could be further from the truth. Both
the Queen's public power and her private influence remain staggering. Even
now it is still the case that only the Queen may appoint the prime minister;
only the Queen may dissolve parliament (the legal device that triggers a
general election); and only the Queen may grant royal assent to legislation
(without which no bill can become law, no matter how many times it is passed
by parliament). No politician may perform any of these functions on the
monarch's behalf, and in the exercise of these powers the Queen is immune
from all scrutiny.

Take, for example, the appointment of the prime minister. Because of
Britain's first-past-the-post electoral system for elections to the Commons,
it is rare for the identity of the prime minister not to be clear. But what
if there were a hung parliament, in which no one party possessed an overall
majority? Who would be prime minister then? The answer is that the Queen
would choose. There could be no legal challenge to her decision, as no court
would accept jurisdiction over the discretion of the monarch. Nor could
parliament do anything about it, save for passing a vote of no confidence in
the new prime minister, the result of which would simply be a further
general election. Anyone who blithely thinks that the Queen would in this
scenario act with the utmost propriety has forgotten the events of 1963
when, together with the outgoing prime minister, Harold Macmillan, the Queen
went out of her way to ensure that R A Butler, the obvious choice, did not
take the keys to No 10.

But the real significance of the Crown's power lies in that which has, over
the course of time, been transferred from the monarch to the government.
Thus, the declaring of war and peace, the disposition of the armed forces,
defence of the realm, the making of treaties, the employment of the civil
service, the issuing of passports and the granting of honours: all of these
are powers exercised by the government of the day, not because there is any
statute conferring them on ministers, but because our medieval legal system
recognises them as being vested in the power of the Crown. All of these are
examples of what is known as the "royal prerogative". It is the existence of
these prerogatives that provides the most compelling reason against the
monarchy and in favour of a British republic: this is because the government
of the day is never as unaccountable as when it exercises, or seeks to
exercise, one of these prerogative powers. Just as the Queen herself is
immune from legal and parliamentary challenge, so, too, is it the case that
when the government exercises a prerogative power, it shares something of
the Crown's general immunity from accountability.

The government is under no obligation to seek parliamentary approval prior
to its use of any prerogative power. Thus, whenever a prime minister decides
to employ troops in war, there is no requirement even to consult parliament,
never mind obtain its support. The fact that a debate was held in the
Commons before last year's Iraq invasion was a concession granted
reluctantly by the Blair government, but it is unlikely to form any sort of
precedent for the future. When, in 1984, Mrs Thatcher unilaterally decided
to ban trade unions from government communications headquarters (GCHQ), she
was exercising the prerogative power that governs the employment of the
civil service. Despite the grave consequences for our public servants' human
rights, the Thatcher government was under no obligation to obtain
parliament's authorisation before acting. Her government simply announced in
parliament that the decision had been taken.

The Scott inquiry into the arms-to-Iraq scandal was set up by John Major
when his ministers' abuse of "public interest immunity" (PII) came to light.
PII is another prerogative power that allows the government to withhold
evidence from court proceedings. A series of British manufacturers had been
charged with violating export laws in trading with Iraq during the 1980s (at
a time when British and American foreign policy was to support Iraq in its
war with our then enemy, Iran). A defence was open to the manufacturers:
namely that their trade with Iraq had been carried out with the backing
(indeed, under the supervision) of MI5 and MI6. The government claimed PII
in order to stop evidence of MI5 and MI6 involvement from becoming public.
Fortunately for the manufacturers, who if convicted would have faced up to
seven years in jail, one of the ministers, Alan Clark, appeared to change
his evidence on the stand, and the trial collapsed. It took four years and
several million pounds for the Scott inquiry to find a way of putting this
right.

As well as undermining our democratic system of parliamentary
accountability, the government's use of Crown prerogative power also largely
escapes judicial review. Until 1984 the courts refused point blank to review
the legality of prerogative power, arguing that the Crown was above the law
and "could do no wrong". This position has been diluted in recent years, but
it remains the case that the courts have no jurisdiction to compel or coerce
the Crown. No-one would be able successfully to seek judicial review of the
government's use of our armed forces in the Iraq war, despite the fact that
there is at least a strong argument that the war breached international law.
If the government were to decide to proceed with the ratification of a new
EU constitution, no-one could seek judicial review of the legality of the
government's decision, even if the country had voted to reject ratification
in a referendum. Prerogative powers concerning the armed forces and
treaty-making remain beyond the reach of the courts.

This is why we need to dispense with the Crown. The way in which the
government of the day is able to use Crown powers to evade parliamentary and
judicial scrutiny of its actions is an affront to British democracy as it is
a violation of the rule of law. This is also the reason why no British
government will advocate a republic, for it is the government of the day
that has most to lose from the abolition of monarchy. The old myth that
Britain has successfully married the traditions of its monarchy to a modern
democracy may be attractive, but it is a lie. A constitutional monarchy is a
contradiction in terms. You're either a monarchist or you're a democrat. You
can't be both. If you want an accountable government, you have to choose to
abandon the monarchy.

Adam Tomkins is professor of public law at Glasgow University. His latest
book, Public Law, was published last year by Oxford University Press.