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Sunday, March 15, 2020

Who advises the monarch?

When the Queen was asked to prorogue Parliament last year so as to give the government some breathing space over Brexit, my view was that she was ill-advised to do so. It seemed to me that Boris Johnson was politicising the monarchy and that the Queen should have used her discretion to refuse the request.

I did not, and still do not, accept that she had no choice in the matter. She is a constitutional monarch, a referee or arbiter, not a government rubber stamp, and providing she does not overstep the mark by frustrating the will of the people, I believe she has some discretion.

She should have taken the Edward VII approach in 1910 and insisted on a general election to break the deadlock she was being asked to intervene in.

Now, a former Supreme Court judge has suggested that a body independent of government ministers should be set up to advise the Queen on matters of constitutional significance. Speaking in a lecture hosted by BBC Parliament, Lord Sumption, who served on the UK’s top court until 2018, said the monarch lacked a “legitimate source of advice”, and that senior public servants could fill the current void.

As the Independent reports, the former justice also warned the prime minister against hostility to the judiciary, the BBC and the civil service as No 10 prepares to launch a constitution and democracy review:

Referring to the prorogation ruling, Lord Sumption said the Queen was not in “any realistic sense advised at all”, due to the convention that she is bound to comply with the wishes of ministers who have the confidence of the Commons.

“All this nonsense about deceiving the Queen was a little absurd,” he said. “The convention does not go ‘your majesty would you awfully mind’, the conversation goes like this: ‘The cabinet has decided to do this, sign here’. That’s the reality of it.”

But, he added: “It seems to me highly desirable that there should be some independent body which should be in a position to advise her on the understanding that she will normally be bound to accept their advice.

“Now, there’s a number of possible options, but my own view is that there ought to be a constitutional committee of the Privy Council that would have a judicial element, but a minority judicial element. “It would consist of experienced public servants for the most part whose function it would be to give the monarch advice, independently of her ministers, on actions that ministers were asking to take.”

As it stands, members of the Privy Council, consisting of ministers, provide advice to the Queen that she is bound constitutionally to follow.

Before parliament was suspended, the monarch held a meeting at Balmoral castle with members of the council, including Commons leader Jacob Rees-Mogg, where she signed off the government’s order, despite protests from the opposition leaders to withhold her consent.

Lord Sumption added: “But what is a more general problem about this – in the prorogation case the courts intervened. Essentially the reason that they intervened is that there are some conventions that cannot be regarded as optional because in their absence we simply seize to be a political democracy at all. And the prorogation decision raised a convention of that kind.

“This gives rise to a quite serious problem is that the Queen has no legitimate source of advice on the constitutional propriety of what she is being asked to do by her ministers, other than the ministers themselves, who obviously have their own position on the subject.”

This seems to be a very sensible proposal and as such I am doubtful whether it will gain any traction within government.
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