Constitution 101: How Powerful Is The Queen?

[This is the first in a series of posts that will look at the key institutions of the British constitution. A version of this particular post first appeared on my personal blog.] 

Americans don’t really understand the British Monarchy. Our pundits often portray the Queen as a powerless figurehead who does little more than cut ribbons and unveil plaques. But in reality, the Monarchy is an integral part of Britain’s constitution, and the Queen wields a great deal of ‘soft power.’

The Queen plays a key role in the machinery of government. The most visible example of this is the annual Speech from the Throne when she opens a new session of Parliament, but this is just the tip of a very large iceberg. The Queen summons and prorogues Parliament.[1] She gives Assent to legislation passed by the Westminster Parliament and the devolved legislatures. She makes a dizzying array of appointments, ranging from the Prime Minister and members of the Government to certain Church of England parish priests. She makes Orders in Council, which are a bit like the US President’s Executive Orders.[2] She signs treaties, accredits ambassadors, and represents Britain abroad on state visits. She recognizes excellence through the honors system. In short, if something important has to happen in government, there’s a good chance she has to approve it.

And then there’s the reading. Each day, the Queen receives numerous pieces of official information, from obscure committee reports to diplomatic cables. By all accounts, she takes this aspect of her job very seriously. There’s an anecdote about how Winston Churchill was once caught flat-footed during his weekly audience when the Queen wanted to discuss an obscure Foreign Office telegram that Churchill hadn’t bothered to read. When he returned to Downing Street, he ordered his Private Secretary to make him read everything!

As incredible as it may seem to Americans, there are very few formal constraints on the Queen’s power. Unlike the US, Britain has been curiously reluctant to explicitly limit the Monarch’s power, so the Queen’s veto over legislation is absolute, and Parliament has no control over royal appointments beyond the power of impeachment.

In the absence of formal checks and balances, unwritten conventions have emerged to guard against autocracy. The most important of these is the convention that the Monarch must act on the advice of the Government of the day, even if he or she disagrees with it. But that doesn’t mean the Queen must unhesitatingly sign whatever it placed in front of her. As the constitutional theorist Walter Bagehot explained in the nineteenth century, the Sovereign has the right to be consulted, the right to encourage, and the right to warn, though these powers can only be wielded in private. Unfortunately, this stricture makes it difficult to understand the relationship between a living Monarch and his or her Government. Ministers’ communications with the Sovereign are exempt from disclosure under the Freedom of Information Act, so we won’t be able to gauge the Queen’s political influence until several years after her death.

However, we are not totally in the dark. Anne Twomey, Professor of Constitutional Law at the University of Sydney Law School, has unearthed some tantalizing tidbits about the Queen’s influence on Australian affairs, which she chronicles in The Chameleon Crown: The Queen and Her Australian Governors (Sydney: The Federation Press, 2006).

For example, in 1979, the Government of New South Wales tried to implement a package of constitutional reforms that would have abolished appeals to the Privy Council in London and required the Queen to appoint the state Governor on the advice of the Premier of New South Wales instead of the British Foreign Secretary (although the Queen acted on the advice of Australian Ministers in federal matters, the states were still technically dependences of the British Crown, which is why the Foreign Secretary still played a role in choosing state Governors).

As usual, these changes were announced in the Governor’s Speech from the Throne, and a copy of the speech was submitted to Buckingham Palace. The British Foreign Office had some concerns about the constitutionality of New South Wales’ proposals, but mandarins felt that the best course of action would be for the Queen to respond with the usual formal acknowledgement, and then the British Government could raise the matter orally through diplomatic channels.[3]

The Queen, however, disagreed with this approach. She wanted to warn the Governor right off the bat that the Foreign Secretary might advise her to veto the bills. The British Government yielded, and the Foreign Secretary informed the Governor that he would advise the Queen to veto legislation he deemed unconstitutional.[4] In the end, the New South Wales Government backed down. Rather than risk a royal veto, they decided to let the bill lapse[5] even though it had been passed with bipartisan support.

Sometimes, all you can do is smile. Photo by NASA/Bill Ingalls via Wikimedia Commons.

Photo by NASA/Bill Ingalls via Wikimedia Commons.

Later, when Australia was negotiating with Britain over legislation that would sever the remaining constitutional ties between the two countries, the state Governments pushed for the right to advise the Queen on state matters in place of the British Government. The Queen objected to this proposal because she feared being put in an untenable position if a state government advised her to do one thing while the Commonwealth government advised her to do something else.[6]

Her reluctance was enough to sway the Commonwealth Prime Minister. He told the state Governments that he wouldn’t ask the Queen to accept advice from them since he didn’t want to put her in the ’embarrassing’ position of having to reject ministerial advice.[7]

However, the Commonwealth Government eventually felt they had no choice but to give their full backing to the states’ proposal. The Queen was told that, even if she disagreed with the idea, the Commonwealth would stand its ground. If she remained opposed to receiving direct advice from the states, she would have to formally reject the Commonwealth Government’s advice, which would almost certainly have started a constitutional crisis of epic proportions.[8]

In the face of a resolute Commonwealth, the Queen reluctantly agreed to accept the advice. Although she yielded, the Queen won significant concessions from Australia. She was keen to establish limits on the state Governments’ ability to advise her when she was visiting, and the Australia Bills[9] were amended in light of her concerns. Clause 7(2) was changed to make it clear that the Queen’s state-level powers were exercisable only by the Governor (this was intended to save the Queen from having to override a Governor’s decision). Clause 7(4) provided that the Queen was ‘not precluded’ from exercising any of her functions when she was actually present in a state. According to Twomey, the latter change was made because the Queen wanted to be able to decline a state Premier’s request to personally exercise her powers.[10]

The states also agreed to a convention that the Queen would only exercise her powers within a state after prior and mutual agreement between the Palace and the state government. It was a win for both sides. The Queen could take comfort in the fact that state Premiers couldn’t force her into a constitutionally awkward position, while the state governments were reassured that the Queen would only act with their consent.[11]

These examples show that the Queen’s power to be consulted, to encourage, and to warn are more than just traditional courtesies. The Australian Government could have ignored her concerns and pressed ahead with unpalatable advice, but instead they bent over backwards to try to assuage her fears. But at the same time, they also reveal that the Queen can’t frustrate her Ministers forever. If they are willing to stand their ground, she will ultimately have to back down.

A British Monarch might not have the overt political power of a US President, but they aren’t ciphers, either. As we have seen, soft power can go a long way, and I suspect that when the history of Elizabeth II is written, we may be surprised at her canniness.

NOTES

[1] She used to dissolve it, too, until the Fixed-Term Parliaments Act 2010 abolished that power.

[2] Broadly speaking, there are two types of Order in Council: Prerogative Orders and Statutory Orders. The former are made under the inherent power of the Crown and generally deal with parliamentary matters and Crown appointments, while the latter are made under the provisions of an Act of Parliament. For example, an Act might give the Queen-in-Council the power to make rules for a particular situation.

[3] Twomey, 178-181.

[4] Twomey, 181-183.

[5] In Australia, custom dictated that state Governors didn’t give Royal Assent until they’d received a certificate from their Law Officers stating that there was no legal impediment to granting Assent and no reason to reserve the bill for the Queen’s personal consideration. By withholding this certificate, the New South Wales Government effected a pocket veto.

[6] Twomey, 201.

[7] Twomey, 220.

[8] Twomey, 253-254.

[9] I.e., the legislation severing the constitutional ties between Australia and the UK.

[10] The original draft of this sub-clause actually went so far as to explicitly state that the Queen was not obligated to accept advice from state Premiers while in the state, but the Commonwealth objected to language that seemed to enshrine in statute the idea that a constitutional monarch could disregard ministerial advice. Instead, they opted for the ‘not precluded’ formula, which left things suitably vague. Twomey, 252.

[11] Twomey, 254-255.

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3 Responses to Constitution 101: How Powerful Is The Queen?

  1. dsimic says:

    Very interesting and informative, I am following your blog from now on. If you believe that monarch’s powers in the UK are unchecked, you may wish to read my little post on how to remedy that.
    http://ipolad.net/2015/02/16/how-to-reform-the-british-monarchy-and-update-british-political-system/

  2. Pingback: Fact-Checking Today I Found Out’s Video On The Queen’s Powers | A Venerable Puzzle

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