Sure. Action taken to remove the monarch which the monarch did not assent would be, legally speaking, a revolution. But it might well be an effective revolution. And a justification would be claimed, in the scenario we are envisaging, on the basis that the monarch had already acted unconstitutionally in refusing to assent to a Bill which Parliament had passed and the PM had advised her to assent to.
The point is that the UK constitution embraces not just laws, but also conventions. It would be lawful, but viewed as unconstitutional, for the UK monarch to refuse to consent to a Bill, against the advice of her Ministers, on the grounds that she didn’t like it and wished to frustrate it.
The US Congress could not, but the UK Parliament could. The UK Parliament combines the legislative and executive branches of government in one entity whose powers are not defined or circumscribed by a written constitution. (The Magna Carta restricts only the Crown).
Doc Irons would have expected you to know that.
I am not at all sure you are correct about any Parliamentary act except for the beheading. It doesn’t matter because the present Parliament could assign legal status even to the beheading any time it wanted to.
The problem with your argument is that it’s pure speculation on what might happen. My argument has 1,000 years of precedent on its side: legitimacy inheres in the monarch, and all laws need royal assent. Hell, Parliament recognizes this fact every time it sends a bill to the Queen. If Parliament can rule without her, why don’t they?
Parliament did rule without a monarch, for 12 years after Charles I. Granted, they switched back to the monarchy, but if the dice had rolled differently at some point, it’s possible that the English Commonwealth could have been one of the first enduring European republics.
Same thing could happen today. It would be a major constitutional change, but change happens.
I’m no British legal scholar, but I know one tenet of British law I was taught in History classes at the University of London is that all legitimate laws require royal assent. Moreover, it is not viewed as a quaint anachronism by the Brits; it is viewed as a useful check should it ever be necessary. (The example my prof used was that GB would have never had a Vichy-type government, had the Nazis successfully invaded, because legitimacy is established only by royal assent.)
Parliament may have legislative and executive functions, but it does not have royal ones. The Royal Assent is required for any bill to become law. Any argument to the contrary is not borne out by any precedent I know of. Similarly, the right of Parliament to grant the Royal Assent, or pass laws without it, is not constitutional. The assertion that Parliament can arrogate unto itself that right has not been established. Indeed, it is contradicted every time Parliament sends a bill to the Queen.
Yes, but Parliament ruled illegally. The Confederacy also ruled for 5 years. It ruled illegally. Seizing power illegitimately is certainly possible, but it is not legal.
The argument is that Parliament could legally strip the queen of her power without her consent.
I agree, it can’t. Just like, as Northern Piper points out, the American Colonists couldn’t legally terminate the powers of the crown, declare independence or acquire sovereignty. But they did it anyway. As the UK will do, if they are ever minded to get rid of the monarchy, and find the monarch unco-operative.
If this tweed-brained professor said that Parliament lacks the power to dispense with the need for royal assent to its bills then he is wrong, and if he could be wrong on something so elementary then he should not have been appointed to the position he held when you took his class. His “should it ever be necessary” case involving foreign occupation and a rubber-stamp, non-Representative Parliament is too different the normal rule of law to be a useful hypothetical situation. Furthermore, he should have known that the royal family would assuredly not have been allowed to fall into the hands of an invader, but would have been spirited away safely overseas.
And as for the matter of precedent for dispensing with the need for assent I looked it up (Wiki), and yes, Parliament did exactly, explicitly that in the Civil War era, and Parliament did a lot of other things which a monarch might find unpleasant, options it certainly retains.
In fact your professor Tweed-Brain seems to have a topsy-turvy understanding of the whole situation, given that it is the monarch who needs assent from Parliament to get on with life. Parliament has been quite lenient for some time now, but it was only in the last century that a King was forced by Parliament to abdicate just because his intended did not measure up to Parliament’s standards.
The crux of the matter is that the royal house and all its prerogatives only survive at the pleasure of Parliament, which probably reflects the will of the people reasonably well. The monarchy’s popularity is now pushing 80% approval, and even during the darkest days of the Charles-and-Diana saga clear majorities wanted to keep the institution, so it is here to stay, at least as long as the Kings and Queens don’t muck things up by trying to revive anachronistic veto authority.
No duh. Did you read what we were even talking about? I argued that the Queen has a great deal of power if she chose to exercise it. Posters then argued that she doesn’t, because if she tried to withhold assent Parliament would strip her of her crown. That is pure speculation! No one has ANY IDEA how a constitutional crisis would be resolved.
But the fact that everyone acknowledges it WOULD be a constitutional crisis proves my point: the queen can legally withhold assent and prevent a bill becoming law. The argument that “the first time she does this would be her last” is not borne out by law or precedent. It may cost her the throne. She may also succeed. But the argument that the queen has no power because Parliament MIGHT take it away is patently false. She certainly possesses all powers Parliament recognizes, and it recognizes Royal Assent.
Of course the monarchy could be abolished. No one argued it can’t be. I’m not some monarchist nutball who thinks the Duke of Anjou is the king of France. France has no king. But under the UK’s current constitution, the Monarch’s assent is required for a bill to become law. Withholding assent is her prerogative, whether she exercises it or not.
You are clinging to the notion that the essence of legality resides in and emanates from the royal house.
So it did from ancient times to early modern times. We live in a newer world where the elected representatives of the people are the ultimate arbiters (even over the courts, whose rulings can be eventually circumvented).
In practical terms, of course Parliament does have that power - and has used it, e.g., during the Commonwealth period.
But, legally, no. All such exercises by Parliament are revolutionary acts; they are not lawful. Since the Restoration, all acts of the Commonwealth parliaments have been regarded as legal nullities; as never having had the force of law, and as not having it today.
Mmm. I think we need to distinguish between political legitimacy, which requires a democratic mandate, and legality, which does not.
Legally, the Queen assents to Acts of Parliament and, if she does not, they do not have the force of law.
In order that this arrangement should have political legitimacy, a convention has arisen whereby the Queen gives or withholds her consent on the advice of the Prime Minister, rather than on the basis of her own independent judgment.
Were the Queen to breach this convention and withhold her consent, this would be legally effective - i.e. the Bill concerned would not have the force of law. But her decision would lack political legitimacy, and would call into question the continued political legitimacy of the legal rule by which all legislation requires her consent.
To recover political legitimacy, a couple of avenues could be explored. The Queen might agree, e.g., to abdicate, and her successor might commit to exercising this power on ministerial advice. Or he might assent to legislation requiring him to do so, or to legislation removing the need for royal assent to legislation.
But let’s suppose the Queen plays hardball. She won’t assent to the Bill; she won’t abdicate to break the logjam or save the monarchy; she won’t do anything which will restore political legitimacy to the system. And let’s suppose that Parliament responds by passing a resolution which says (a) the Queen is removed from office, (b) the Bill which she refused to assent to is now law, and (c) from now on Bills become law without the assent of the (new) monarch. The Queen, of course, does not assent to this either.
That would be illegal. It might be effective (assuming the courts, the civil service, the army, the people, etc accepted it) and it migh restore political legitimacy, but it would be a revolutionary act, just as much as the American Declaration of Independence or the Irish Constitution of 1937. As such it might ultimately be the foundation of a new legality, in which powers of government in the UK are derived not from the crown but from the people, or from their representatives. But that would be a fundamental change in the organisation of the UK government.
Thank you, UDS, that was my understanding of Royal Assent. But it’s been 15 years since I studied this stuff and I never could have stated it as clearly, or with relevant examples. (And I feel Dr. Peter Rose of the University of London has been vindicated)
On the contrary, in a system such as that of the UK lacking a written constitution and judicial review no act of Parliament may be considered illegal or revolutionary. That distinction could in the limited case being discussed here belong only to the disobliging monarch.
I’ll get to the rest of your longer post later. Much of it should be covered by the foregoing.
Well, strictly speaking, of course, it’s not an “Act of Parliament” unless it has the Royal Assent. Under the current British Constitution the courts should (and presumably would) treat a a Bill which has been approved by both houses but has not been assented as not being an Act of Parliament and as not having the force of law. Were the courts to treat such a Bill as having the force of law, that would be a revolutionary act on their part.
In other words, the courts and parliament together can, by a revolution, remove the crown from the British constitution. But, make no mistake; it would be a revolution, legally speaking. To be accomplished within the present constitution, it would have to be done with the crown’s assent.
We also need to distinguish between the workaday definition of parliament and the formal, constitutional definition.
Formal, constitutional definition: the crown-in-parliament, the Lords, Commons and Crown all concurring on something. Such agreement is final, binding, and only revokable by the crown-in-parliament.
Workday definition: Commons and Lords. The Crown’s actions are automatic and rarely objectionable to the Commons and Lords, so it’s counted out.
The formal, constitutional parliament can do anything it likes. The Commons and Lords by themselves, legally, cannot.
Now, if it came to the Crown withholding Assent on a bill, the crisis would be a novel one in modern times. But I would imagine that, as has been suggested, bar the Queen abdicating and a new, more compliant, monarch being installed, that the Commons and Lords would pass a motion declaring the present monarch deposed, and either install a new one or declare a republic.
It would be illegal, but legitimate, assuming that the wider public side with parliament over the issue. The constitution would be suspended, and in all likelihood we’d have a fairly peaceful revolution in which the Crown is dissolved.
That would be a major break in British constitutional continuity.
Or a less peaceful revolution in which the person who wore the Crown is dissolved. In a strong solvent. Possibly after having been killed through some other method.
Which leads to a philosophical quandary: If an entity has a right on paper, but would be instantly destroyed if it exercised that right, does it actually have that right? The answer is either “One Cromwell to go, hold the Glorious Revolution” or “Ten pounds of flax!”, depending on which island ‘monarchy’ you’re talking about. Old things don’t have to make sense, they don’t have to make money, they just have to make themselves older.
All of this reminds me of the Sovereign Citizen Movement, and its inability to distinguish a (possibly insane) theory from reality; the main difference here is that some people are willing to say that there actually is a real sovereign involved.
I’d argue that the Queen undoubtedly has that right, but like nuclear weapons, would only ever use it in full knowledge that doing so means constitutional Armageddon.
One irritating assumption everyone seems to be making is that the Queen would render herself instantly odious by withholding assent.
What if an unpopular bill for war with Iran came to her and she spoke to the people, “My ministers have been making mischief in the Middle East since Suez. I won’t have it anymore. They’ve ignored my counsel and insist on another war. I won’t give my Assent, and Parliament can go to blazes!”
Does anyone think that would cost her the Throne? I don’t.