The Monarchy and the British Constitution

As the authors point out, the alternative to the Monarchy in Britain & the Commonwealth Realms is a secular, atheist republic, NOT a Catholic monarchy.

From One Peter Five

By Sebastian Morello, PhD and James Bogle, Esq., late President of Una Voce

Editor’s note: we publish this article as part of a respectful debate among English Catholics. We will not be publishing further installments in this debate. Follow the links below for previous articles on this topic. -TSF

Why British and Commonwealth Catholics Venerate Their Protestant Monarch, by The Hon. Joseph Shaw, DPhil (Oxon), FRSA, Chmn, Latin Mass Society, President, Fœderatio Internationalis Una Voce.

Catholics and the Monarchy, by James Bogle, Esq., late President of Una Voce.

The article by our friend, Theo Howard, entitled Monarchy and the Great Silence, published here at OnePeterFive, contains assertions that we believe are serious errors, which misrepresent the true position of the British monarch, not least the late Queen Elizabeth II.

Truth should be the first concern of Catholic journalists and writers, and so we wish to respond to Howard’s piece in fraternal charity for the sake of the truth.

Firstly, from a practical perspective, it is our concern that Howard’s article could do real harm by having the effect of encouraging secular republicanism (the only actual alternative available today) through the spreading of untruths, and serve to sour relations between nationalists and monarchists, particularly in communities where the issue is sensitive and even explosive. After all, it was not long ago that our United Kingdom was in conflict within its territories, namely in Northern Ireland, precisely over the question of whether that part of the Kingdom ought to be under the Monarchy or under a republic.

The initial part of Howard’s article is both typically eloquent and reasonable. Then, however, it arrives at what is described as a “quiet, regretful dissent.” This “dissent,” we hold, is occasioned not by any legitimate cause but due to error and misunderstanding.

That there has been a slow apostacy of the British nation away from God cannot be denied. To blame this apostacy on the late Queen, however, is unjust and unreasonable. Both the apostacy and moral degeneracy on display in Britain today is equally observable across the European Continent and the Americas—not least the historically very Catholic countries—so it strikes us as strange to lay this terrible trajectory at the feet of Her Majesty.

More precisely, to blame the Queen for not taking an overtly partisan and political role is to fail, fundamentally, to understand the British Constitution. To call this “silence” a form of tacit consent to all the policies of successive elected governments indicates even less understanding. Accordingly, it seems a tendentious prestidigitation to claim that “Queen Elizabeth II’s reign was nearly a completely unmitigated decline for the United Kingdom and the other Commonwealth Realms,” as if the fact that, by convention, this period is described as her “reign,” its decline can therefore be blamed on her personally.

Let us come, though, to the main component of Howard’s “quiet, regretful dissent,” which centres on a constitutional issue. We found Howard’s account of the British Constitution and how it works especially misguided. Howard criticises the Queen for not vetoing the Abortion Bill 1967. Contrary to what Howard claims, however, under the British Constitution the Royal Assent cannot be withheld by the Monarch, save on the advice of ministers, or in extremely limited circumstances which, it is widely acknowledged, reduce to vetoing any Bill which purports to abolish democracy. (This was explained, in some detail, in a OnePeterFive article by one of the present authors entitled Catholics and the Monarchy).

In fact, the process of Royal Assent does not even normally rest with the Monarch, but with the relevant ministerial office. In the UK system, to veto a Bill, a Monarch would have to go out of his way to attempt to do so and, in so doing, would be attempting to usurp power that he did not possess. That, of course, would be illegal, unconstitutional, and thus a breach of both the law of the land and the Constitution, both of which the Monarch swears an oath to uphold and not to breach.

Howard thus not only requires that the Queen should have breached the law and the Constitution (both of which, again, she was bound by an oath to uphold) but, in so doing, to have, herself, single-handedly, destroyed democracy by over-ruling the settled vote of the legislative house elected by the people. Thus, Howard blames the Queen for the fact that she did not possess a certain constitutional power. We are left asking: how is that her fault?

Howard supposes that the Monarch sends an “emissary” to pronounce the words of Royal Assent: la Reyne le veult. This betrays a lack of knowledge of the actual procedure. It is the clerk of the House of Lords who pronounces these formulaic words and usually on the instruction of the Lords Commissioners who, in turn, are so instructed by the relevant minister; it is not on the instructions of the Monarch. The words are formulaic precisely because the Monarch, on his own, has no power to refuse them, save through a deliberate intervention in the rare case mentioned above. Yet Howard suggests that the Monarch may simply over-ride the UK’s parliamentary democracy at will.

Such a usurpation of power, given that it would be illegal, seditious, and a very grave breach of the Constitution, would be highly immoral. One may not do evil that good may come of it, as St Paul teaches (Romans 3.8). In the case of the Abortion Bill, the Queen acted constitutionally and could not have acted otherwise without doing evil; indeed, it is more accurate to say that she did not act at all, for she had no power to act. By claiming a right of veto that she did not constitutionally possess, she would have, by that single act, destroyed the Constitution which is the common possession of all her subjects. It is not untypical, at a period in history during which we have acquired peace-time habits, to struggle to imagine what it might be like to live in a country that is constitutionally rupturing; thus, the Queen is blamed for not executing a coup d’état that would have brought about such political chaos.

It is worth stating, lest there be any doubt, that the present authors’ feelings and convictions regarding the unspeakable evil of abortion are not mild. Between us, there is over half a century of pro-life activism. But that is simply not the issue. The issue is this: did the Queen have a veto power over the Bill or not? That is a matter of constitutional law. And the answer is: no, she did not have such veto power. Therefore, no-one can rightly blame the Queen for not exercising a power she did not have.

The reality, as the relevant constitutional authorities testify, is that the Monarch, acting alone, has no such veto power under the British Constitution.[1]

As Howard develops his case, once again, the Queen is blamed for the declining morals of the nation by speaking of her “guilt” that “she has reigned over a period of the greatest diminishment of Christianity, and public morals, in her realm in hundreds of years, and that this will be her greatest historical legacy.” Hence, yet again, she is blamed for a trajectory over which she had no control and which is observable across all countries gripped by the ideology of progressivist liberalism. Howard even calls this “her” legacy.

Further on, Howard claims that the Monarch is not “apolitical.” It is, in fact, a cardinal rule of the British Constitution that the Monarch remain entirely apolitical, publicly. This does not mean that the Monarch never comments about any public events whatsoever. It means that he must not interfere, in any public way, with the governmental and political process of law-making and policy-making. Thus, contrary to Howard’s analogies, the non-political role of the Monarch is nothing like liberal “neutrality.” As a matter of provable historical fact, the Queen never breached this chief constitutional convention. To do so would, again, have been akin to an attempt to subvert democracy and the democratic process. The Monarch is, and must remain, politically neutral lest he publicly interfere in the democratic process and so breach a vital constitutional convention.

Howard in fact recognises that “Monarchs cannot refuse assent, unless in an emergency, without arrogating powers that do not belong to them, and thus fundamentally damage the Constitution itself” but then proceeds to blame the Queen precisely for not doing so. Hence, she is damned if she does and damned if she does not. Howard acknowledges that such is the constitutional settlement that has obtained in Great Britain since the 1688 Revolution and yet he attempts to blame the Queen for a constitutional settlement that she inherited, and which had been in place for 300 years before her accession. No doubt Howard, like us, would prefer a constitution that afforded the Monarch greater powers to rule, rather than only to reign, but that is not the Constitution we have. To hold the Queen accountable for inheriting the same flawed Constitution that we have all inherited is plainly unjust.

Howard admits that “attempting to seize or usurp power is therefore an evil” but then blames the Queen for not doing that very evil. He then asks, speculatively, “might the Queen have appealed to a higher law than the British Constitution—namely the Natural Law and Divine Positive Law on which that Constitution, was originally based?”. The simple answer is: she had no such power. If she were to usurp power that the Constitution (of which the Monarchy is merely a part) does not grant her, then, as already stated, she would have subverted and destroyed the very Constitution she pledged solemnly to defend and thus she would have sinned gravely. The locus of such a power is Parliament and chiefly the democratically-elected House. It is Parliament that makes the law. If Parliament did so contrary to Natural or Divine Law—which in the case of abortion, it certainly did—then it is Parliament, not the Queen, that is guilty.

It is claimed by Howard that the Queen, when she made her Coronation Oath on 2nd June 1953, somehow gained powers that the Constitution otherwise denied her. In fact, she gained no such powers. Numerous cases have been brought before the courts attempting to ascribe powers to the Queen, arising out of her Coronation Oath, powers that she simply does not have, and it is the courts who interpret and determine the limits of such powers. All such cases that have been brought before the courts have failed.

In 1992, a certain Anglican clergyman, the Rev Paul Williamson, approached the courts some 14 times to press his claim that the Coronation Oath required the Queen to veto the Priests (Ordination of Women) Measure 1993, the Bishops and Priests (Consecration and Ordination of Women) Measure 2014 and Canon No. 33. Rev Williamson continually failed so that the court, having over-ruled him each time, declared him a vexatious litigant forbidden to approach the court again without express permission of the court, first obtained.[2] In his case, the Court of Appeal comprehensively rejected his arguments and upheld the legality of the ordination of women in the Church of England.

The Court of Appeal held that references in the Coronation Oath to “the Protestant reformed Religion established by law,” and “the settlement of the Church of England and the doctrine, worship, discipline, and government thereof, as by law established in England” referred to “such religion, church doctrine, worship, discipline, and government as so established from time to time, thereby admitting of change in accordance with the law by which it was established.” It also reminded itself that the supremacy of the Crown in Parliament (and not the Crown acting on its own) was a fundamental principle of English law, and the regularity of the consents necessary for the enactment of a statute was not justiciable in the courts.

It is the resort of an endless succession of self-instructed and self-appointed would-be guardians of the Constitution to appeal to the Coronation Oath in an attempt to subvert the sovereignty of Parliament. Inevitably, they always end in failure. Parliament remains sovereign, not the self-appointed would-be guardians. Perhaps we wish it were otherwise, but it is not. In short, the argument from the Coronation Oath is simply a non-argument in law.

It is a further implausibility to claim that the Queen was presented with a “dilemma” as regards Royal Assent for the abortion and same-sex marriage Acts. There was no such dilemma for the simple reason that—as noted above—the Queen had no such power of veto. One cannot be “faced with a dilemma” as to the exercise of a power that one does not possess. The present authors agree that these Bills were utterly contrary to the moral law and to the common good, but for them we cannot blame a monarch who did not propose them, pass them, or hold any power to stop them or veto them.

Then the example of King Baudouin is raised. Perhaps Howard imagines that all constitutions contain the same mechanisms. They do not. We are dealing with the British Constitution, not the Belgian. Belgium has a Napoleonic-style written constitution. The mechanism that exists in the Belgian Constitution, by which the government can declare the Monarch temporarily unable to reign, and thereby assume the Monarch’s authority to enact laws, after which the government can then vote to reinstate the Monarch the next day, does not exist in the UK system. Moreover, the only reason why the Belgian Monarch would have had recourse to this mechanism in the case of an abortion Bill is if he actually did possess a power of veto, and thus was faced with that apparent dilemma. The Queen, by contrast, as we have been at pains to convey, possessed no such veto power under the British Constitution. She therefore faced no such “dilemma.”

The only rational argument is as follows: the Queen attracts no blame for a Bill that she was powerless to veto. Accordingly, abdication would have been both unnecessary and unconstitutional. Howard fails to place the blame where it truly belongs, namely with the elected politicians who presented, pressed, and passed the legislation. Howard demonstrates a surprising naivete when he claims that “certainly, public respect for the Queen would have made it very difficult for the government to abolish the monarchy over such a principled stand.” On the contrary, such a stand would have led to the total elimination of the last remaining, and vital, sui generis veto power of the Crown, namely the power to veto a Bill designed to abolish democracy. It is foreseeable that, in due course, when it would have been repeatedly claimed that the Crown no longer had any powers, pressure would indeed have mounted to abolish the Monarchy as a whole.

Howard admits that “the Queen would have had to surrender the remaining royal prerogatives that she had,” of which there is but one of any substance sui generis (namely, as noted, the power to veto an attempt to abolish democracy). He claims, however, that instigating a coup d’etat by attempting to usurp a power that the Constitution does not grant the Monarch, in opposition to the Abortion Bill, would have been “a sufficiently worthy cause for which to consider making such a sacrifice.” In so saying, Howard fails to recognise that sacrifice entails giving up something belonging to oneself, not something belonging to others. The Constitution belongs to all the people of the nation, not just to the Monarch. It is not the Queen’s personal possession for her to “sacrifice.”

Howard proceeds to claim that, by such an unconstitutional action, “the consciences of the British people may have been stirred” and so there might have been “a great Christian witness.” In fact, there would have likely been the very opposite – widespread dismay at the Monarch attempting to usurp powers, subvert and destroy the Constitution and democracy, and a clamouring for the curtailment of the monarchical powers if not, indeed, the abolition of the Monarchy as a whole. Moreover, such a “Christian witness” would have been profoundly undermined by its realisation in an act of sedition against the Constitution by the very person principally charged with upholding it.

By usurping and seizing a power which she did not have, thereby subverting and destroying the Constitution and gravely sinning, Howard argues that the Queen would have been initiating a just rebellion against a tyrannical government. In reality, she would have been staging an immoral coup d’etat and destroying the very Constitution she swore to uphold and defend.

Moreover, rebellion is never just, as the Angelic Doctor makes clear in his work De Regno (on Kingship), chapter 7, when he writes:

If the excess is unbearable, some have been of the opinion that it would be an act of virtue for strong men to slay the ruler and to expose themselves to the danger of death in order to set the multitude free….

But this opinion is not in accord with apostolic teaching…

In Summa Theologica II-II, q.42, a.2, ad.3, to which Howard refers, St Thomas defines sedition and lays down a standard by which a ruler’s government may be regarded as tyrannical i.e. if the ruler rules for his own private good and not the common good. In such a case his government may legitimately be “disturbed,” unless to do so would be disproportionate (“inordinate”). However, what this article does not say (given its brevity and focus on the definition of sedition) is who may make such a judgement and how. Howard wrongly assumes that St Thomas permits anyone to act and solely on the authority of private judgement, which would in fact render every government unsafe.

What Aquinas writes in this article must be read in the light of his other relevant writings, e.g., De Regno, already cited, and Summa Theologica II-II, q.40, which lays down the principles of just war. The first principle is that there must be proper authority to authorise war-waging since, as St Thomas says: “it is not the business of a private individual to declare war,” and in support of his position he cites St Augustine (Contra Faust xxii, 75) as follows: “The natural order conducive to peace among mortals demands that the power to declare and counsel war should be in the hands of those who hold the supreme authority.”

Moreover, one of the last works of St Thomas, his Commentary on the Romans, is unequivocal on this matter: no one can, by private judgement, absolve himself from allegiance to the temporal power to which he is subject unless directed to do so by a yet higher authority (see Expositio in Romanos, xiii, lect. 1). As St Paul writes, in a passage that St Thomas quotes in his Commentary, “let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgement on themselves” (Romans 1:1-2).

Howard misunderstands the British Constitution if he supposes that the Queen, on her own, had the “supreme authority” to which Augustine refers in the aforementioned quotation. As already stated, since 1688, the sovereign power in the British Constitution is Parliament (strictly, “the Crown in Parliament”) and not the Monarch acting alone. Thus, the Monarch may not, on his own authority, legitimately overthrow Parliament. This is the well-established constitutional principle of Parliamentary sovereignty.

We agree with Howard that, by passing the Abortion Bill, the UK government did something gravely evil, worthy of public and repeated condemnation. We hold that every legitimate means ought to be embraced, constitutionally, to reverse this law.

That law, however, did not render the government illegitimate, and to seek to overthrow a legitimate government is a great evil itself. The governing part of a civil society may effectively institute certain injustices without destroying its legitimacy. And again, according to Catholic teaching, it does not belong to members of society to absolve themselves of their allegiance—unless they be absolved by a higher authority, such as a higher sovereign or higher binding international law, or, in the case of Christian states (according to the principles of Catholic political thought), by the Apostolic spiritual power of the Pope.

To think otherwise is to place private interpretation above public authoritative interpretation, which is the Protestant error, downstream from which are all modern revolutions. Such, in fact, is to perpetuate revolution ad infinitum. Unless absolved of allegiance by a higher authority, one must obey the political authority in all but any compulsion to commit sin. If this were not so, St Peter and St Paul would have been committing a grave injustice by their teachings (see, for example, 1 Peter 2:17; 1 Timothy 2:1-2), given the fact that, by such teachings, they required Christians to obey and honour Caesar, who at that time was the infamous Emperor Nero.

To accuse the Queen of sinning by refusing to veto the Abortion Bill one must first prove that she had such a power but, as a matter of law, no such power belonged to her. If the Queen possessed such a veto power over regular Bills, then failure to veto immoral Bills could certainly be blamed on her. But, as a matter of British constitutional law, the British Monarch has no such power. We repeat once again: one cannot blame a person for failing to exercise a power that the person does not possess.

Even if we were to concede that by passing the Abortion Bill the UK government had become so tyrannical that it had lost its legitimacy—which we do not concede—nonetheless, a principle of just war doctrine is that tyranny is preferable to political collapse (e.g. Saddam Hussein is preferable to ISIS). By attempting to usurp a power that did not belong to her, and thereby rupturing the Constitution, the Queen would have potentially sent the country on the path to political collapse—a country that, as noted at the beginning of this article, faced armed conflict within its own boundaries until fairly recently.

Furthermore, by the same rules of just war, no-one but the sovereign may authorise an uprising, which is a species of war. In the British Constitution, the sovereign cannot act without the advice of his ministers; and so, if the Queen had attempted to do so, she would have been acting ultra vires and thus her act of “rebellion,” already evil in itself, would also have been contrary to the principles of just war.

As for the notion that the Queen should be held morally responsible for the opinions of her late husband, or blamed for the conduct of her grown-up family, we deem such deliberations too close to tittle-tattle to address. Such considerations distract from the constitutional errors that comprise the main thrust of Howard’s case.

Regarding this central argument, Howard, towards the end of his article, attempts to sweep the rug from under the feet of those who might oppose his constitutional case on constitutional grounds. He writes that “the trouble with emphasising the virtues of the ‘settled constitution’ too much is that this can elide with sentimental notions about the former Queen, as well as the inherent desire for comfort and security, that we all have in this all too comfortable age.”

Demeaning those who treasure a “comfortable age” strikes us as coming from one who has not experienced what it is like to be at war. One of the present authors served in Northern Ireland during the conflict in that region, and to him the “virtues of a settled constitution” and “comfort and security” are blindingly obvious.

It should be noted that, when St Paul (see 1 Timothy 2:1-2) writes that “supplications, prayers, intercessions, and thanksgivings be made for all men, for kings and all who are in high positions,” he does so, he tells us, precisely “that we may lead a quiet and peaceable life, godly and respectful in every way.” In short, St Paul is telling us that we must be thankful for the monarch precisely because we enjoy—and should want to continue to enjoy—the “peaceable life” of a settled constitution, beyond which is only chaos.

Howard calls us to “transform all things in Christ,” but he departs from the Catholic tradition by identifying such transformation with revolution. Revolutionary attempts to “transform all things in Christ” are always short-lived, for they are born from rebellion (an impulse that does not belong to the Christian but is rather the chief characteristic of the fallen angels). Rather, what lasts is the measured, lawful, constitutional transformation of nations by the Gospel, exemplified by the Middle Ages (that glorious high moment of Christendom from which our own British Constitution comes down to us).

We join Howard in his lament over the present state of British society, the eroding of our organic Constitution, the gravely evil laws that have been instituted by the UK government, and above all the diabolical apostasy that we have seen sap the spiritual charity from our once noble country. However, to blame Her Majesty for this trajectory—one that is far from unique to these isles—is a serious misjudgement.

We invite our friend, Theo Howard, disagreement with whom is a very new experience for us, to retract those arguments that he has advanced which blame Her Majesty for that over which she had no power, and thus bears no guilt.

 

[1] Erskine May, Thomas, A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament, 1st Ed, 1844, chs 1 & 2, 25th Ed, 2019, ch. 1; Bagehot, Walter, The English Constitution, 1867, London: Chapman and Hall, ch. II; Dicey, A V , Introduction to the Study of the Law of the Constitution, 1885, London: MacMillan, Parts I & III; Bogdanor, V, The Monarchy and the Constitution, 1997, Oxford: Oxford University Press; Hood Phillips, O and Jackson, Constitutional and Administrative Law, 8th edn, 2001, London: Sweet and Maxwell, at para.7–010 & p.136; Tomkins, A, Public Law , 2003, Oxford: Oxford University Press, at pp.63–64; Bogdanor, V, The New British Constitution, 2009, Oxford: Hart Publishing; Barnett, H, Constitutional and Administrative Law, 10th edn, 2013, London: Routledge, at p.325; Halsbury’s Laws of England, Vol.20 (Constitutional and Administrative Law), 2014, London: LexisNexis, at para.18; Parpworth, N, Constitutional and Administrative Law, 8th edn, 2014, Oxford: Oxford University Press, at para.4.9; Bradley, Ewing and Knight, Constitutional and Administrative Law, 16th edn, 2015, Harlow: Pearson Education, at pp.19 and 207; Zander, M, The Law-Making Process, 7th edn, 2015, Oxford: Hart Publishing, at p.49; Wheeler, G J, Royal Assent in the British Constitution, LQR 2016, 132(Jul), 495-505. The exercise of the Royal Assent is not purely formulaic in the sense that the Crown, acting on the advice of ministers, might, in very rare circumstances (e.g. a minority government, or a colonial or devolved government), theoretically be advised to withhold assent but such a situation is highly unlikely. What we are discussing in this article is not such a scenario but rather the Crown refusing assent against the advice of ministers or alone. That, it is agreed by the relevant constitutional authorities, would only be lawful in the situation where the whole Constitution were about to be vitiated e.g. by extending the life of Parliament indefinitely or gerrymandering the electorate so that the government could never be ousted – that is to say, permanently destroying democracy. Otherwise, the Monarch, acting alone, no more has such veto power than do any of his subjects.

[2] Reverend Paul Williamson v the Archbishop of Canterbury and others [1996] EWCA Civ J0905-2, Court of Appeal; R v HM Attorney General ex parte Reverend Paul Williamson [1997] EWHC Admin 691 QB (Div Co).