The EU as Britain’s Constitutional Stabiliser?

Yves here. This discussion of Britain’s unwritten constitution is over my pay grade, but I thought this piece might provoke some informative discussion from our UK-based readers (and recent expats).

By Andreas Rahmatian, Professor at the School of Law, University of Glasgow. Originally published at openDemocracy

More than it thinks, Britain may need its membership in the EU for the preservation of its national integrity and of its ancient constitutional settlement.

After a preliminary agreement in December 2017 phase two of the Brexit negotiations has begun. Still, there seems little awareness that Britain might experience considerable internal constitutional and political changes as a result of its departure from the EU, including the risk of the disintegration of the country altogether.

Unlike its European counterparts, Britain has an unwritten and essentially still feudal constitution with a constitutional continuity since 1689 (in the case of England) or 1707 (when England and Scotland together formed Britain).

Feudalism is still the ultimate framework of the British state. Therefore in England and Wales every ‘landowner’ is still a feudal tenant of the Crown, and the legislative and executive institutions, in particular the Crown and Parliament, have a feudal root.

The legislative powers derive from (theoretically unfettered) parliamentary sovereignty, not from the people. That parliamentary sovereignty limits the prerogative of the Crown and its executive – but to what extent depends on the constitutional decisions of the courts. Neither parliamentary sovereignty nor the prerogative of the Crown are in any way regulated by a written constitution.

This feudal constitution is not an irrelevant historical baggage in a modern, and perhaps federal, democracy. Feudal systems are by nature centralist: if the regions had too much autonomy, the state would fall apart (such as historically in Germany); if the central power was strong (such as in France), the state could continue to exist as a unitary entity. In a feudal state structure, genuine federal systems are not possible, and indeed, they do not exist in the UK: what we have is an ‘asymmetrical’ devolution, that is, in Scotland, but not in England.

The impossibility of a federal system across the UK is reinforced by the fact that the source of legislative power still emanates from the British Parliament in London, not from a (written) constitution which could then also enact a genuine federalism, with autonomous federal parliaments in all parts of the country.

Therefore the existence of Scottish devolution and the Scottish Parliament with its law-making powers is dependent on the continued support of the Westminster Parliament. That can change at any time, and Scottish MPs will never have a majority in Westminster to prevent this. Parliamentary sovereignty means that no future Parliament can be bound by a previous Parliament: this is undisputed.

Moving on From Here

The Westminster Parliament has recently enacted s. 63A of the Scotland Act 1998 according to which the Scottish Parliament and government are ‘a permanent part’ of the UK constitution, and the Supreme Court decision of R. (Miller) v. Secretary of State for Exiting the EU in January 2017 has confirmed that.

But this is the same idea of self-limitation of sovereignty by Parliament that has been used to explain EU membership and submission to the supranational legal system of the EU. It is precisely that legal order which the UK seeks to leave, so that the constitutional reconciliation of parliamentary sovereignty with (former) EU membership is a questionable precedent for devolution.

Parliamentary sovereignty also means that Parliament cannot be bound for the future by a constitutional rule which it enacts. It may be unpopular in Scotland that there is no effective constitutional guarantee of Scottish devolution under the present British constitution. Now British parliamentary sovereignty is even politically reinforced (‘take back control’).

Indications that the Scottish devolution system may suffer after Brexit are already there. The European Union (Withdrawal) Bill, in its original version, expects powers currently with the EU to revert as central powers to London, not as devolved powers to Edinburgh. In R. (Miller) the Supreme Court made clear that Scotland and Northern Ireland have no legal veto on the UK’s withdrawal from the EU, although they voted in favour of EU membership.

A copy of the Scotland’s Place in Europe document during meeting at the Scottish Parliament, in Edinburgh, to discuss amendments to the European Union (Withdrawal) Bill, February 1, 2018. Jane Barlow/Press Association. All rights reserved.

Both positions are constitutionally perfectly sound. This demonstrates that Britain could establish a partial system of federalism for Scotland more easily because it has been a member of the EU where the position of being a unitary sovereign nation state is less relevant: a Member State is embedded in a supranational legal and political framework. Once Britain is on its own after Brexit, the assertion of its national unity and centralist integrity will become much more significant. Scotland may object to these effects, as well as Northern Ireland and Gibraltar. More than it thinks, Britain may need its membership in the EU for the preservation of its national integrity and of its ancient constitutional settlement.

Will of What People?

This situation also shows that parliamentary sovereignty is enshrined in the unwritten British constitution, but democracy less so; at least there is no functioning minority protection: the people of Scotland, Northern Ireland and Gibraltar who have clearly voted against Brexit are apparently not part of the proverbial ‘will of the people’.

The ancient prerogative of the Crown only emphasises that malleable notion of the ‘will of the people’ where the ‘people’ are really a kind of part-time sovereign. The British government’s view that, based on the prerogative of the Crown, Art. 50 of the Treaty of the EU can be triggered by the government without the involvement of Parliament may appear appalling for modern democratic systems, but is not an absurd position under present British constitutional law. R. (Miller) proved the government wrong, but the decision confirmed the royal prerogative in principle.

Theoretically, goodwill from all politicians may help maintain political stability. But constructive goodwill is still in contrast to some Brexit politicians’ attitude. The British government has set up Britain effectively as a direct political and economic competitor to the EU, not as a partner. Why should the EU then be interested in a comprehensive trade agreement or in the integrity of Britain after Brexit?

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  1. PlutoniumKun

    To take a wider perspective, one reason often overlooked as to why the EU is so popular in minority regions from Catalonia to Sardinia, Brittany to Wallonia, Scotland to Corsica, is specifically that it provides an alternative constitutional structure to their often overweening and unpopular centralised national governments. The weakening of national power is what specifically makes the EU so attractive to non-sovereign regions. It both strengthened the relative position of those regions, while weakening the motivation to go independent. Membership of the EU has helped centralised States to create more satisfactory internal settlements which has helped to hold otherwise fissiparous countries such as Belgium, Spain and Italy to hold together. So national governments have maintained their grip and power by essentially passing some power upwards to Brussels, which in turn passes it back down to the regions.

    The failure of English nationalists (not unlike their Castillian counterparts) to understand this could well cause the UK to break up. Even a relatively ‘clean’ break between Scotland and England would likely be enormously disruptive and messy. The situation with Northern Ireland is potentially very violent. With Wales, most likely it would be just a sullen damp squib.

    1. vlade

      My ideal Europe is the Europe of regions, where things like Westminster are cut out entirely. Not that I expect anything like that soon.. But IMO, it’s the only way how the EU as an organization can survive long term.

      1. PlutoniumKun

        I would agree that its an ideal, the problem of course is in defining what the regions are – every country has a very different idea on what constitutes a ‘region’ (and of course some, like Ireland, insist that there are no regions at all).

        I suspect that it would be impossible to get any sort of consensus on how to genuinely reorganise the EU on that basis. I can remember years ago when ‘subsidiarity’ was the big idea, but national governments, and Brussels itself, chipped away at that notion.

        1. vlade

          Well, EU has already defined regions (for statistical purposes), and that’s as good a start as anything else. I’d fully expect it to be in flux for a few decades (and even after that, although smaller) – but one can build the system for that. TBH, the more of an issue for me is the responsibilities split. The regions would have to have enough freedom for it to matter, but not too much so that it could lead to paralysis of the whole system.

      2. CharlesV

        it’s the only way how the EU as an organization can survive long term

        I agree. However, a lot of people will be uncomfortable with this which is why I think the EU will ultimately fail and the further quest for integration is likely to fan the fuels of nationalism again in a very ugly way.

        There is no appetite for regional government in England (the latest lot of devolution is being imposed) so Westminster will be around for a lot longer.

    2. visitor

      Since the article highlights the feudal nature of the British constitution, your remarks lead to a parallel with the situation in medieval Europe.

      At that time, towns and communes were also relying upon a superior territorial organization to provide “an alternative constitutional structure to their often overweening and unpopular” regional lords. Striking deals with the emperor of the Holy Roman Empire, or the king of “all Spains” granted those towns or communes extensive rights to administer themselves and using the king/emperor as direct appeal body, all without interference from the local baron, count or duke. Of course, it might also mean paying taxes directly to the king/emperor, and providing military levies to him, but in general that important figure was too busy for micro-managing those towns/communes, so it was a swell deal for everybody involved (except the feudal lords, whose power was undermined).

      During the second half of the Middle Ages, there was a general movement to shed overbearing vassalage structures and get self-administration rights directly from the king or emperor — most notably in what is nowadays Germany and Spain. Sometimes, it went awry. The Swiss were quite pleased to have struck a deal with the Holy Roman Empire to escape the clutches of their overbearing local lords from the Habsburg family, but were quite dismayed when a Habsburg eventually became emperor himself. Followed a long series of wars to get definitely rid of the suzerainty of the Habsburg both as feudal lords and as heads of the Holy Roman Empire.

      During the Renaissance (right from the 16th century onwards), kings and emperors, having sidelined feudal lords, started centralizing their states and rolling back those rights granted directly to towns and communes. In Spain, for instance, kings accordingly cancelled or restricted most “fueros”. European regions should remember that history, for once national states have been emptied of their prerogatives by the EU and reduced to pure administrative subdivisions, there will be no alternative powers to play against each other.

  2. IsabelPS

    Many, many years ago, a very clever and enlightened Belgian friend that had worked, among other high places in the administration, in the Council of Europe (NOT the Council of the EU) told me that he believed that the future Europe would be supra and infra national.

  3. Disturbed Voter

    Too bad German leadership of the EU is so … marginal. They don’t trust themselves, and nobody trusts them. Break EU up into micro states …. Germany in particular into the Holy Roman Empire … neither holy, nor Roman, nor an Empire. Then Europe won’t be a fiddler crab.

  4. paul

    Westminster voted against a labour amendment to return EU powers to the devolved administrations.
    There seems little chance that the Lords will revise this position.
    It looks to me that a silver lining (for the swivel eyed) to this mess is to gut the devolved parliaments, which is,presumably, why they have been beefing up the Scottish Office over the last few years.
    As the post points out, Parliament is not constrained from taking back any powers it wants.

    The crazed logic of hard brexit even demands it as this article suggests:

    For example, healthcare is devolved, and any future trade deal with the US or current ones being rewritten by the Trade Deal Bill (such as with Canada) that could involve access to NHS contracts for North American companies would therefore be subject to a veto by each of the devolved administrations.

    Ipso facto, the UK Government does not have the powers it needs to negotiate third nation trade deals, unless it takes powers back from the Scottish Government.

    I can’t imagine anything more appealing to Westminster than putting the inconveniences of devolution into a box.

    The DUP may want direct rule, I don’t think Scotland is convinced of its charms. I’d value the messy break up of independence over that.

      1. Synoia

        As the post points out, Parliament is not constrained from taking back any powers it wants.

        And this statement echos from a History class a long time ago:

        What the (UK) Parliament giveth, it can taketh away.

  5. Adrian Kent.

    The author seems to take the benefits of ‘Our national integrity’ as given. I take serious issue with this – essentially it means the continued dominance of Westminster over Scotland and Wales.

    Externally the ‘benefits’ of the UK are similarly hard to find – from the export of Thatcherism, tax-haven London and war, war, war the evidence is quite the opposite.

    The break-up of the United Kingdom would be a very good thing indeed.

  6. Carolinian

    Here in the US this matter of regional autonomy versus central government supremacy was settled by a Civil War. We have a Constitution but they left out the part about whether states were allowed to leave so the question was settled on the battlefield. In truth some on this side of the pond find Britain’s feudal remnants and veneration for the Royals a bit strange–even as our Capitalists, many of them, are busy trying to construct their own version of feudalism.

    1. CharlesV

      It’s not about the veneration of the royals it’s about pragmatism.

      Since our civil war things have been pretty settled on a constitutional level: we navigated the revolutions of the 18th and 19th century, abolished slavery, introduced universal suffrage, built an empire, lost an empire, granted independence to a chunk of our country, fought too many wars, introduced regional parliaments etc… all the while whilst maintaining a parliamentary democracy.

      The big advantage of an unwritten constitution and a constitutional monarchy is flexibility that allows for near constant evolution and change, reducing the chances of sudden, dramatic and painful changes.

      1. Oregoncharles

        At least until Scotland devolves altogether and N. Ireland rejoins Ireland – which is the only real solution to the “Irish border” problem.

        The real problem I see from here, which the article avoids, is that Britain has no guarantee of civil liberties without the EU. In fact, it appears to be one of the more tyrannical modern nations.

        1. CharlesV

          At least until Scotland devolves altogether and N. Ireland rejoins Ireland – which is the only real solution to the “Irish border” problem.
          Unlike with Spain and Catalonia, Scotland had a referendum on independence sanctioned by the national parliament. Had the result gone the other way, Scotland would have left the union without violence, imprisonment of political leaders etc… the necessary acts would have been passed in the UK parliament. There would have been sadness but no constitutional crisis.

          Ireland is another kettle of fish but the difficulties there aren’t constitutional. For what it’s worth in the unlikely event that the republic of Ireland agreed to take on responsibility for the North, I don’t think it would be England and Wales having the crisis.

          The real problem I see from here, which the article avoids, is that Britain has no guarantee of civil liberties without the EU. In fact, it appears to be one of the more tyrannical modern nations.

          Don’t understand this comment. A written constitution is no guarantee of civil liberties – they can and, regularly do, get ripped up, changed, ignored or misinterpreted. A supra national body with limited direct democratic accountability as the guarantor, really?

          Not sure any other state in the EU has had as long a period of parliamentary democracy and respect for the rule of law as the UK, maybe the Netherlands. Don’t say this arrogantly, our constitution is flawed but don’t see it is worse than anyone else’s and better than many.

          Also be aware that we remain parties the European Convention on Human rights whether or not we remain in the EU. It’s a separate issue but in time we may leave this too and find it is replaced by a British bill of rights. That said, not at all convinced that either of these is, in the long term, a better guarantee of civil liberties than having nothing.

        2. CharlesV

          There would have been no crisis if Scotland had voted to leave, just sadness.

          Very questionable if the Republic wants Northern Ireland to join. If this were the case and Northern Ireland wanted to don’t see that would cause any crises in England and Wales.

          The EU as a guarantor of civil liberties? If you are relying on an external body to police your civil liberties they’re not worth the paper they’re written on.

          Our unwritten constitution offers a much stronger guarantee of individual liberty IMHO than a written constitution. It’s a flawed system, but has proved more effective than many for a much longer period

      2. Synoia

        The big advantage of an unwritten constitution…also includes:

        Avoiding all the legalistic arguing and jockeying that accompanies the US’ constitution.

        1. EoH

          The unwritten variety puts more legal and cultural power in the hands of the elite, making them harder to challenge. But as with a written constitution, its functioning depends on social and cultural agreement among the elite. That agreement is fraying in the UK, it is whisper thin in the US.

    2. JBird

      On the States being able to leave the Union, the Civil War really began by the Confederates firing on Fort Sumter, which is what President Lincoln wanted. The federal government was small, the states really were in same ways different countries(states), and all the Confederate States had done was say that they were not going to play anymore with the Federal government and the rest of the union. There is no law saying you have to participate in the government, just that you must follow it.

      Once the South effectively threw the first punch Lincoln could frame as violent rebellion instead of peaceful non-cooperation as otherwise there was a possibility of being unable to raise a real army. Later abolishing the “peculiar institution” also was used as many people, racism aside and almost everyone was racist, did not like human beings being treated like cattle; the South had made slavery a central reason for leaving the Union.

      A case can be made that the issue really hasn’t been settled (although as a practical matter, it is), and an amendment could be passed to deal with the whole issue, and it should be done; for now, an amendment could be past individual state(s) could be allowed to leave. The whole thing is a major weakness of the Constitution and might somehow pop-up again.

      This is a bit pandantic I know.

      1. Darthbobber

        Of course, even at the time of the civil war the majority of the confederate states had no sovereign past to look back on. They had been purchased with the national treasury or conquered by national arnies, organized as territories under a national government and then granted statehood.

  7. Darthbobber

    I think we’ve demonstrated in the US that having various guarantees written into a constitution by no means actually guarantees them. One minor example: southern blacks could not possibly have been disenfranchised any more thoroughly had their franchise rested on a “mere” act for the representation of the people.

    The written constitutions of the ussr and prc, by the way, were just awesome in terms of guaranteeing all sorts of things that failed to noticeably exist in the real world.

    1. Anonymous2

      The other way in which the EU has acted as a stabiliser for the UK is politically. UK membership of the EU has been, as a generalisation, a project of the centre. Support for Brexit has come from the forces of the right and left. This is of course a generalisation, but one with some salience IMO. The referendum result has disempowered the centre and empowered the right above all. The 52% who voted leave were probably approximately two-thirds from the right, one third from the left. This is one of the reasons UK politics is now so incoherent. The Right and Left could agree on Leave but not on anything else. The Centre want the status quo. There is no majority support for any specific path forward.

      Do not be surprised if there is a Socialist government in 2022-27, followed by a Radical Right one in 2027-32. Both would probably fail as they would most likely be run by ideologues rather than people with any practical vision.

      1. Darthbobber

        Golly. LibDems want the status quo when it comes to brexit. How did they fail to storm to a great triumph?

        I don’t think there actually is a center that consists of people wanting the literal status quo as a complete package. The present state of the nhs? Of housing? Of transit? Of employment?

  8. David

    It may be that membership of the EU has had the kind of stabilizing influence that the article suggests, though I’m not sure that Britain’s integrity would have been in jeopardy if we hadn’t joined: it’s impossible ever to know. It’s also conceivable that Brexit could put this stability in jeopardy, although, ironically, that jeopardy would be less from underlying tensions which go back 400 years than from new tensions created by the Brexit decisions themselves. We’ve discussed the (Northern) Irish problem, but there are others.
    I’m not actually sure that the end of the UK would be a good thing, not least when you consider the often violent consequences when countries fall apart. More widely, the enthusiasm for the EU in certain regions, described by PK above, paradoxically depends on the continued existence of nation-states for its attractiveness. The EU is seen, rightly or wrongly, as a check on excessive centralised power at home. But of course the weaker national governments become, the weaker this argument becomes in turn, because central governments are also a check on the powers of the EU. A “Europe of the Regions” would be unable to stand up to Brussels over anything, unless Brussels itself had its wings severely clipped.
    I agree about EU membership as an idea crossing party lines, although I don’t think it’s necessarily an issue of the centre versus extremes. It was rather the dogma of a middle-class professional and technocratic elite with a strong presence in parliament, business and the media, favoring vaguely progressive social policies and neoliberal economic ones. This elite was able to muffle criticism of Brussels, and prevent competing versions of European integration, which existed elsewhere in the political spectrum, from being given a hearing. Before Brexit, this had become pretty much the default position for a successful career in politics, business or academia, being invited onto the BBC or writing op-eds in “serious” newspapers. These views were not universal, of course, probably not even those of a majority, but they dominated policy-making. In Britain, as in some other European countries, this situation indeed looked stable for a while, but it depended on the permanent marginalization of opposing views, and one rule of politics is that what you expel through the door often comes back through the window. Thus the “surprise” of Brexit.

    1. Synoia

      The EU is seen, rightly or wrongly, as a check on excessive centralised power

      I have both sincere and severe doubts about the EU being any check on centralized power, as it arrogates to itself “centralized power,” by removing power away from the countries.

      The EU’s behavior may be beneficial – until it is not.

      1. Anonymous2


        I agree with almost everything you write. But saying the elite was able to muffle criticism of Brussels jars with my perception of newspaper reporting on EU matters these last 30 years or so. Perhaps we read different newspapers but I encountered an almost endless stream of hostile reporting when I opened most English newspapers, much of it relying on serious distortion and often complete fabrication.

  9. doily

    I don’t understand the how the theoretically unfettered power of the British parliament is plays out in actual political relationships, either domestic or international (or, apparently in the case of Northern Ireland, both). I gather from this post that Scottish devolution exists at the will of this sovereign institution in Westminster, and can theoretically be reversed. With regard to domestic political arrangements, parliament is sovereign. But what about internationally? Who would ever sign a trade or peace agreement with the UK if it were the case that “parliamentary sovereignty means that no future Parliament can be bound by a previous Parliament”? The present and future political structures of Northern Ireland are subject to an international agreement with a neighbouring EU member state (The Good Friday Agreement of 1998). And the EU has confirmed that if it is the will of a majority within Northern Ireland, it can join the EU along with the Republic. This situation is the result of a 30-year-long history of parliament walking away step by step from its “supremacy” over Northern Ireland. I don’t understand how parliament can be seen in these circumstances to have unfettered power to reverse devolution in either Scotland or Northern Ireland, or to leave the EU on terms even remotely like those currently imagined by Brexiteers. But what do I know? I’m a blow-in from a country where the constitution was written down.

    1. kate

      CETA has a getout clause for canada.
      That was essential for canada to be able to sign,
      its in their constitution. (perhaps devolved from uk).
      You may remember that Nafta can also be revoked,
      even clinton admitted it could be done in 6 months.
      I presume for the similar reasons. Otherwise all sorts
      of tricks could be pulled.
      With the eu signing a treaty, no member state
      could ever negate it, since they dont sign the treaty. TTIP for example.
      However canada could opt out of TPP in future, with a change gov.
      Ambrose pritchard
      wrote 13/6/16 “Brexit vote is about the supremacy of Parliament and nothing else”.
      And those on the left made this exact same point. Working classes, including migrants.

    2. Tom Bradford

      “Who would ever sign a trade or peace agreement with the UK if it were the case that “parliamentary sovereignty means that no future Parliament can be bound by a previous Parliament”?”

      No country can be tied irrevocably to any trade or peace agreement. However a country that made a habit of walking away from its agreements on every change of Government would quickly find it very difficult to be included in any.

      Oh, and hasn’t the US just walked away from the accord on climate it signed in Paris?

      “I gather from this post that Scottish devolution exists at the will of this sovereign institution in Westminster, and can theoretically be reversed.”

      This is so. Of course this came about when James VI of Scotland became James I of England under the Acts of Union passed by both the English and Scottish Parliaments (the key word being ‘Union’) and had he chosen to rule from Edinburgh with the Scottish Parliament containing English members making the laws for the unified realm he could have done so.

      1. Yves Smith Post author

        Please do your homework. The Paris Accord has an exit provision and the US is adhering to it. The US did not “walk away”.

        In accordance with Article 28 of the Paris Agreement, the earliest possible effective withdrawal date by the United States cannot be before November 4, 2020, four years after the Agreement came into effect in the United States and one day after the 2020 U.S. presidential election.[5] The White House later clarified that the U.S. will abide by the four-year exit process.[6] Until the withdrawal takes effect, the United States may be obligated to maintain its commitments under the Agreement, such as the requirement to continue reporting its emissions to the United Nations.[5]

        You’ve provided bogus information before (“making shit up”). That is a violation of our written site Policies and why you are in moderation. One more instance and you will be blacklisted.

        1. Tom Bradford

          Yves, I’d argue that your personal attack on me is unjustified. I was merely seeking to answer doily’s question about trusting Parliament when a subsequent Parliament can change its mind. Whether it does so using permitted means or just tears the agreement up is not the point as I saw it.

          The US ‘walking away’ from the Paris Accord (and the phrase was much used at the time — google it) is a volte-face by the US no different from a Parliament pulling out from an agreement entered into by a previous one. In fact Parliament has done so in choosing to ‘walk away’ from the EU, but in both cases although permitted by the agreements the consequence is going to caste doubt on any future commitments by the US as to climate change agreements and the UK as to joining pacts. Such rights/powers have always existed but exercising them even legitimately can damage a State’s international standing, which I would suggest the US’s walking away from the Paris Accord has done in the minds of many people.

          However this is the only sanction in International relations, other than going to war.

          1. Darthbobber

            Whether we ever properly “walked into” the Paris Accord is a matter of interpretation, since Obama took the position that it wasn’t really a treaty and that an executive order would suffice.

            Had it been submitted to the senate as a Treaty, its pretty obvious that the requisite votes would not have been forthcoming.

      2. D

        The Acts of Union have nothing at all to do with James I, who simply succeeded to the English throne as Bessie’s nearest relative, leaving the separate parliaments unchanged.

        The Acts of Union took place in the reign of William and Mary, one act by the english parliament providing for Scottish members, and one by the Scottish parliament terminating its own existence.

        Then it took nearly another century before a further act of union terminated the life of the Irish parliament.

  10. Tom Bradford

    The article underestimates the constitutional importance of the Crown. Parliament is only sovereign to the extent that our Civil War took from the Crown the ability to make law independently of Parliament. But every Act of Parliament must still be signed into law by the Sovereign.

    Presently the Prime Minister still meets with the Queen regularly to discuss matters of State and it is widely rumoured, and generally accepted, that in these meetings the Queen was able to rein in some of Margaret Thatcher’s more extreme proposals as in the ultimate case the Sovereign refused to sign a law into effect it would cause a constitutional crisis which even Thatcher would not have wanted to provoke. As even a law abolishing this necessity for the Sovereign’s assent would require the Sovereign’s assent the Government’s only arguably constitutional recourse would be to call an election on the specific point of by-passing the need for the Crown’s consent, with the ‘will of the people’ thus the ultimate constitutional arbiter.

    Of course this ultimate constitutional protection is only as good as the living, breathing, defecating, sweaty human being in which it resides and in this regard (IMHO) it helps enormously that the person concerned is above politics (in that they cannot directly affected by them), is independently very wealthy and hence above bribery, and does not have to win friends and influence people to get the job having been born into it and trained for nothing else. Again IMHO the present Queen has the trust of the people generally to hold this ultimate constitutional nuclear bomb and I believe Charles III will inherit this. Indeed I suspect he might be somewhat more proactive than his mother in trying to protect the environment ‘behind the scenes’ as it were, and to put the brake on an extreme right or left-wing Government to the best of his ability, although again his only power is, ultimately, to provoke a constitutional crisis which could end up dethroning him.

    The powers the EU is aggregating to itself now go far beyond the ‘simple’ regulation of trade and commerce into a common market as was the original vision, particularly via the centralised, unaccountable administration of the Euro, and I believe this is a reason many voted for Brexit. Should that not happen it is not impossible to visualise a situation arising whereby an edict from Brussels offends the UK commons and a future King Charles III. Whether the Crown would then be able to exercise its ultimate constitutional nuclear option and give the power to accede to it or not back to the people is a moot point but I for one rest a little easier knowing it is there.

  11. Darthbobber

    Goodness. How could anybody quarrel with a “widely rumored” claim that unspecified Thatcher proposals might have been reined in by Bessie the second of England, first of Scotland?

    If you take great comfort in the belief that a monarchy unable to even maintain its own living quarters without grants of parliamentary funds is gonna do all that, then thats the sort of thing you take comfort in. I suspect the hypothetical charlie 3 has a pretty good idea of how many cavaliers would rally to the royal standard if he imitated Charlie1.

    1. Tom Bradford

      It is a fact that the Crown has the ultimate power to stop legislation by not signing it. It is fact that the Sovereign could tell the Prime Minister privately that they would not sign an Act of Parliament into law and it would then be up to the Prime Minister to decide whether or not to provoke a constitutional crisis by pushing it. It is rumoured that Thatcher and the Queen clashed over some of the Prime Ministers extreme Tory proposals and Thatcher backed down rather than challenge the Queen publicly but whether that is true I can’t say.

      I do like to think that if a King Charles III with his clearly strongly held environmentalist views was faced by a Prime Minister Trump proposing to restart the Welsh Coal industry and open up Britain’s National Parks to logging he, and he alone, would be able to at least put a brake on it. Sure he might choose not to but at least he could. It’s just a hope but at least it a better hope than looking for anything the US constitution currently do to stop the disaster that is the present US President.

      1. Darthbobber

        But would not your hypothetical prime minister be doing all these evil things as a result of the people handing his party the power to do so?

        If, for two centuries, the crown has obligingly signed every feckless act of parliament handed to it, it seems unlikely to alter that pattern now.

        Unless- the party system were to break down massively and you had a return to the days of a large body of members affiliated with neither government nor opposition. That would inject the crown back into politics to some extent.

        It was really the rise of the disciplined party structure and the near-necessity of affiliation to secure election that enabled the stabilization of something resembling the present system.

  12. vlade

    The point is that the crown deciding NOT to sign something (which is a tecnicality, but the world turn on technicalities) would be so earth shaking – exactly because it wasn’t done for so long, that it would in effect create a consitutional crisis. What it would become of that is a big question – because if there is no written consitution, there are really no ways of how to formally resolve a consitutional crisis either.


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