I think the strictly factual answer is that custom dictates that Parliament choose the monarch from a list of people that have some hereditary minimus, but it has the inherent power to modify that custom. Parliament has exercised that power in the past.
Nobody would know for sure until someone starts a campaign to change the existing line of succession. Inertia (or “possession is nine-tenths of the law”) would make that unlikely to succeed - but if it did, that would establish a new legitimacy.
I think you’ve touched on the difference between legitimacy and legality. Nothing binds Parliament except, ultimately, the sense its members have of what the public will tolerate without endangering Commons MPs’ seats at the next election.
Treason never prospers - what’s the reason?
If it prosper, none dare call it treason
This can be expanded a bit. The “Government” i.e. the executive body with the Prime and other Ministers is in some senses separate from the Commons. Then there is the Judiciary. All of these (Monarch, Commons, Lords, Government and Judiciary) are pulled together in the Privy Council which advises the Monarch; most constitutional issues would be settled in this body or at least “organised” ready for any official action. This multi-cornered setup gives the UK its (sometimes irritating!) stability.
Who needs legal theory when you have traditions?
I’ve always thought the same thing except for me it was sign (as King doing what your people want) or refuse to sign (as a Catholic protecting his people from themselves). He took the coward’s way out.
Which gets us into the circularity which that law is not valid if the monarch doesn’t give assent.
That would be an issue if they were changing from a monarchy to a republic. To keep it legal, they’d need the outgoing monarch to sign off on abolishing the monarchy.
But if they’re deposing one monarch and replacing them with a different monarch, they can have the incoming monarch give consent to the law. The deposed monarch can withhold their consent but it doesn’t matter; they’re not the monarch anymore.
But that was not the scenario given. It was keeping the monarch in place and stripping them of their power to veto.
The exchange got a little convoluted but I thought the original hypothetical we were discussing was your post about replacing the Windsors with the Stuarts.
I would think at that point, it would really come down in the short term to who the security people answer to when they’re told to remove Charles and the Windsors from the palaces, and in the long term to what the voters thought of the MPs who supported the bill and eviction.
That, not incidentally, is why the state monopoly on violence is such an important thing; when it comes down to it, the people who the armed people answer to are the ones who have the power. I feel like there’s a 2nd Amendment discussion in here somewhere, but that’s for a different thread.
Yes, but as I implied above, such a refusal might end up precipitating a revolution. In which case, the regime or order of the state would change and nobody would care about the monarch’s signature.
I agree that if there was a revolution and a new government took power in Britain, it could retroactively claim its own legitimacy. I’m just wondering if the current government that exists in Britain claims if has the power to make anyone a monarch.
There’s the Cromwell precedent that was mentioned above. That was a case when Parliament offered to turn a commoner into a monarch. Cromwell ultimately turned down the offer.
But does the current Parliament regard the offer as a legitimate act that was within the power of Parliament to issue? Or does the current Parliament argue that the Parliament back in 1657 went too far and was acting illegally when it made the offer?
The current (or any conceivable) Parliament has other things to do and would be beyond unlikely to want to spend time on that retrospective a question.
I imagine it would have been a lot more topical in 1660 when Charles II was crowned.
So did Parliament specifically renounce the actions of three years earlier? Or did they maintain that the action had been legal although they were now choosing a different course?
The 1660 (Convention) Parliament declared that Charles II had been the lawful monarch since the execution of his father, so yes, they were declaring the invitation by the remains of the previous parliament unlawful.
By that time, of course, the constitutional arrangements of the Protectorate were collapsing, as different factions within the Army and Parliament took to arms. The calling of the Convention Parliament was, in effect, a compromise between Charles and his exiled advisers on the one hand, and those who had offered Cromwell the throne, backed up by a major faction of the Army.
So “legality” was more of a formalisation of what was perceived to be legitimate, in that the Restoration looked like the only sustainable resolution.
And Parliament from 1660 onwards took the position that all laws passed by the Commonwealth, after the execution of Charles I, were null and void. Parliament did pass laws retroactively validating some of those laws, if they agreed with the role and purpose of them, but it was the subsequent laws passed by Parliament that gave them legal effect.
They’re more than “gentlemen’s agreements”, at least in the formulation of the Supreme Court of Canada in the Patriation Reference. They have normative force.
The Court held that unilateral patriation by the federal government alone, without substantial provincial support, would be legal, but unconstitutional.
No, this is not correct. Parliament is the source of all powers, not the Crown. The Crown is only one part of Parliament, and head of the executive. It has some legal prerogative powers, but those are always subject to being altered by Parliament. One definition of the royal prerogative is that it is the residue of the legal powers that the Crown has held in the past, that have not been altered or abolished by Parliament.
I would disagree with this summary. There is a fusion of membership between the members of the Government who sit in the Commons and who also hold ministerial positions, but the executive and the Commons are separate institutions, with separate functions.
Nor do they all come together in the Privy Council, which is part of the executive. Members of the Commons are not automatically members of the Privy Council, nor are the judges, who are separate from both the legislature and the executive. Nor is the monarch a member of the Privy Council.
The Privy Council is a large body, whose members are appointed by the monarch, on the advice of the Prime Minister. Since it is a lifetime appointment, it has a very diverse membership. However, only those who currently are in office (ie hold ministerial positions) are part of the sub-group which advises the monarch on all issues.
This makes no sense in the context of American law. Can you explain what it means in yours?