I’m not talking about the role of the monarch; I’m looking for the legal theory behind the existence of the monarch.
History gives us examples of Parliament exerting power over the monarch; either by limiting their authority or by removing them entirely. But what is the legal theory that underlines this?
Does British legal theory hold that monarchal power originates in Parliament? Could Parliament declare that anybody is the monarch?
Or does British legal theory hold that a person has to have some inherent monarchal trait in order to be a potential monarch? That Parliament has the power to recognize somebody as a monarch and define what their authority is but only if that person has that inherent trait.
Simply put, can Parliament create a monarch or only recognize the existence of a monarch?
On a separate issue, is the correct term monarchal, monarchial, or monarchical? I’ve found all three in use. I’m using monarchal because it’s the shortest.
Finally, I’m not sure which forum this topic is best suited for. If a moderator wants to move it to a different one, feel free.
Its complicated as British law is based on common law where there isn’t a single written source of the law, like the US constitution, there is a just the various acts of parliament and the accumulated precedent of the court cases that have ruled on them over the years
As I understand it, since the Glorious Revolution the precedent is that acts of parliament can restrict who can be considered heir to the throne and who actually rules on behalf of the monarch (i.e. elected ministers not whichever favorite they fancy this week)
And as with most things like this in British history, there was no concern about satanists, communists, Muslims, or alien shape shifters becoming king, only a very explicit prohibition against Catholics getting anywhere near the throne
I believe the legal theory is that Parliament is composed of three entities: the Monarch, the Lords, and the Commons. That three-part Parliament has the supreme legal authority over the Kingdom, and can ultimately do whatever it wants.
What precedent is there today with what the Roundheads did to Charles I to hold the monarch accountable to Parliament considering they never did address any of Charles’ legal positions? I know through political party they can force abdication (Edward VIII) and in the case of James II and VII Parliament purposefully stated they did not depose him but rather he abdicate so with all this, does Parliament have the legal authority to pass a bill next week saying Charles III was no longer king?
The United Kingdom is a constitutional (parliamentary monarchy) and has been so since the Act of Settlement of 1701 (and the Bill of Rights of 1689 for the Kingdom of England, and for Scotland the Claim of Right Act of the same year) with the Kingdom of Britain joined under The Treaty of Union of 1707 and joining the Kingdom of Ireland via the Acts of Union of 1800. While the King or Queen is the head of state and must approve appointment of the Prime Minister (and all public office holders swear an oath of allegiance to the Crown) the role has become almost entirely ceremonial.
Succession is governed by the Acts of Union, and amended by the Succession to the Crown Act of 2013. Ostensibly, succession is hereditary, but Parliament can challenge this, and in fact, did so in the Glorious Revolution, deposing James II and VII, and replacing them by election of Mary II and William III of Orange in coregency. While Mary was the eldest child of James, he had a male child (James Francis Edward) who theoretically should have legitimately been next in the line of succession. The Act of Settlement was essentially passed to post hoc legitimize this action and to block Catholics from the line of succession.
As far as “legal theory” it is complicated because there has not been a consistent legal thesis of the power of the monarchy and what comprises legitimacy for succession, but in practice the Parliament has authority to pass laws to exclude someone or alter the line of succession. The creation of an entirely new line of succession or electing a random person to the Crown would be entirely unprecedented in modern law, but there is nothing that specifically prohibits it other than custom and the ostensible requirement for royal assent.
As I stated above, legally they declared James abdicated and was not deposed.
If Parliament passed a law stating the heir would not be any Windsor but would revert to the Stuarts through Francis I then Charles might decide that’s the cross to die on and refuse Royal Assent. Then what?
I doubt James would have agreed with that assessment but given that he fled to France he didn’t have much of a say in it.
That is essentially an unprecedented situation, but if Parliament decided that Charles III was no longer a legitimate king due to negation of the Acts of Settlement, then they could just decide that Francis is the legitimate successor (or, as he regards the claim as a “charming historical curiosity” and presumably would not pursue it, Max Emanuel Herzog) and seek assent from him.
To address the question of the o.p., “…the legal theory behind the existence of the monarch,” the Crown is the sovereign authority from which the mechanisms of government derive all powers. The monarch is the legal personification of the Crown and head of state, but while there is a legal fiction that the monarch is the ostensible sovereign authority for the Crown, the real legislative and executive power (including to remove and replace the monarch) is vested in the Parliament and the ministers other advisors appointed to the Privy Council.
An ivory-tower theorist might say that it dates back to the Anglo-Saxon witan which officially proclaimed the accession of a new king.
Modern scholars tend to think that the witan was closer to a royal council than to a house of commons, but the vague idea has been in place for a long time. Kings might bark orders and chop heads, but they generally wanted a group of elder statesmen standing behind them and saying they did right.
It’s a constitutional convention that the monarch must assent to legislation enacted by Parliament (unless, arguably, advised not to by ministers). The King, in withholding consent on his own initiative, would not be acting illegally but would be acting unconstitutionally.
This is unprecedented in modern times, so we don’t know what would happen. Parliament might respond in a revolutionary way, deposing the king. They might try to give this a colour of legitimacy e.g. by declaring that the king’s refusal to perform his constitutional duty is tantamount to abdication, so they aren’t really deposing him, just accepting his abdication, but I don’t think many people would be convinced by that argument.
What happens after they depose the king? If they are trying to position themselves as acting in a constituionally legitimate way, they pretty much have to accept that the person next in line under exisiting succession law now becomes the monarch, so they presnt the legislation that the now ex-king refused to assent to, and invite that person to assent to it. That person does, or doesn’t; rinse and repeat.
If parliament is openly acting in a revolutionary way then they have the option of simply nominating some biddable person as the new monarch, regardless of what existing law says about succession to the throne. Or, a more likely course of action in the 21st century, they establish a republic.
In 1990, when a law submitted by Roger Lallemand and Lucienne Herman-Michielsens that liberalized Belgium’s abortion laws was approved by Parliament, he refused to give Royal Assent to the bill. This was unprecedented; although Baudouin was de jure Belgium’s chief executive, Royal Assent has long been a formality (as is the case in most constitutional and popular monarchies). However, due to his religious convictions—the Catholic Church opposes all forms of abortion—Baudouin asked the Government to declare him temporarily unable to reign so that he could avoid signing the measure into law.[21] The Government under Wilfried Martens complied with his request on 4 April 1990. According to the provisions of the Belgian Constitution, in the event the king is temporarily unable to reign, the Government as a whole assumes the role of head of state. All members of the Government signed the bill, and the next day (5 April 1990) the Government declared that Baudouin was capable of reigning again.[21]
The conventional phrase is “The Crown in Parliament”, in which Parliament takes the decisions and the Crown dignifies them. There are many government activities explicitly done in the name of "The Crown’ (e.g., the Crown Prosecution Service, police and military) as distinct from the government of the day.
There is an old-established principle (the Dicey Principle) that says a Parliament can undo any acts of any if its predecessors.
Yes, but the politics, administration and outcome of such a decision would be anybody’s guess, depending on the circumstances.
I don’t know if “unconstitutionally” would be completely correct. Constitutional conventions are “gentelmen’s agreements”, they are not enforceable at law.
My understanding is that technically, the King may withhold assent to a law. This is because: 1) no bill of the British parliament has ever become law without the Sovereign’s assent; 2) there is no law forcing the Sovereign to signify his or her assent to a bill or other legal way to directly compel them so.
Therefore, if King Charles were to do so, at that moment that would be a perfectly legal act, in line with the unwritten British constitution. At least at that given moment in time. If anyone wishes to provide evidence to the contrary, please do.
That said, given today’s political climate, this move would surely result in a constitutional crisis, could result in the resignation of the government, and could result in a bill stripping the Sovereign of the right to assent to laws (this happened in Luxembourg some years back when the Grand Duke refused to assent to a law about euthanasia or abortion) which the Sovereign would be requested to assent to - or perhaps even a revolution of some kind.
As I said in the OP, I understand the role of the monarch in British government. My question was how does the British government feel the identity of a monarch originates.
Historically, a monarch is born with the trait of being a monarch, at least in potential. Charles III was the son of Elizabeth II and Prince William is the son of Charles III. And there are people like Prince Harry and Prince Andrew and Ralph Jones who are not in the direct line of succession but who everyone recognizes have the potential to be a monarch if the circumstances arose.
I also realize that Parliament has sometimes created those circumstances. James II was deposed and replaced by William and Mary. Edward VIII was replaced by George VI. Harold was replaced by William (although Parliament wasn’t involved in that one). A lot of people were skipped over when Anne died in order for George I to become king. So Parliament clearly claims the power to tell somebody they are not the monarch.
But all the people I just named could claim descent from some past monarch and make their claim to the throne on that basis. The closest England ever came to doing otherwise was when the possibility of naming Oliver Cromwell as king was considered but Cromwell instead took the title of Lord Protector.
So my question is whether Parliament claims it has the right to make a king out of anybody or does it feel its power is limited to only working with people who already have the potential to be king?
Parliament’s got absolute authority to install/depose a monarch, but I doubt they’d rock the boat to just depose an existing monarch and install some non-Royal as king, for example.
I think the Act of Settlement 1701 is the binding document for succession, but Parliament can just amend it however it so desires because of that “King in Parliament” concept and Parliamentary sovereignty. They could legally write a law that makes me king, but it’s not likely that they’d do so.
