1 Robert Blackburn and Raymond Plant, “Monarchy and the Royal Prerogative” in Blackburn and Plant (eds.), Constitutional Reform: The Labour Government's Reform Agenda (1999), p. 152.

2 The Times, 25 November 1992.

3 “[H]ardly an institution or procedure has escaped modernisation [since 1997]…. The only institution which has not been modernised is the Crown, though the monarchy has been the subject of much discussion and criticism especially since the death of Princess Diana”: Gabriele Ganz, Understanding Public Law (3rd ed., 2001), p. 1.

4 The Government has said that the Queen has no objection to the removal of the rule that favours males over females in the line of succession, and that the matter was under review: 586 H.L. Deb. 916 (27 February 1998). During the 2001 General Election campaign the Prime Minister described the statutory bar against Catholics succeeding to the throne as “plainly discriminatory”, and promised a review of it, although he added that a change would be fraught with constitutional problems: Daily Telegraph, 4 June 2001.

5 See notes 62-65 below.

6 An exception is R.A. Edwards, “Republican Britain: The Constitutional Implications” [2000] Cambrian Law Review 1.

7 The sources of those rules are detailed in R. Brazier, “The Constitutional Position of the Prince of Wales” [1995] P.L. 401.

8 Calvin's Case (1608) 7 Co. Rep. 1a at 10a: “… the King is esteemed to be immortal, invisible, not subject to death …”.

9 See, e.g., T.F.T. Plucknett (ed.), Taswell-Langmead's English Constitutional History (11th edn., 1960), chapters 1, 17. At King John's coronation in 1199 Archbishop Hubert, according to one account, declared that the Crown was absolutely elective, with no preference being given to members of the royal family unless founded on their personal merit: Plucknett, op. cit., pp. 483-484.

10 In 1952 Commonwealth High Commissioners in London were also present.

11 Crown and Parliament Act 1689.

12 Bill of Rights 1689, supplemented later by the Act of Settlement 1701, s. 2.

13 Bill of Rights 1689, supplemented later by the Act of Settlement 1701, s. 1.

14 And by the Dominions. For the role of the Commonwealth realms in relation to any proposed change to a republic see below section III.A.

15 See Brazier, “The Constitutional Position of the Prince of Wales”, [1995] P.L. 401, at pp. 414–415.

16 The monarch's consent to the abdication legislation would be necessary in order to give legal effect to it, as with His Majesty's Declaration of Abdication Act 1936. James II, of course, did not consent to his enforced abdication, but the situation was regularised through the recognition of a legal revolution by the Convention Parliament and by the courts, which deemed him to have abdicated.

17 Walter Bagehot, The English Constitution (1867), p. 94.

18 Ibid., p. 88.

19 Frank Prochaska, The Republic of Britain (2000), chapter 4.

20 Prochaska, op. cit., pp. 220-221.

21 This was the approach taken by the Royal Commission on the Reform of the House of Lords: A House for the Future, Cm. 4534 (2000).

22 Some executive presidents are also members of their national legislatures, but that is unusual. The United States model is more typical.

23 Of the 15 member states, seven (including the Grand Duchy of Luxembourg) are constitutional monarchies, and the remainder are republics.

24 As in, e.g., Saudi Arabia and Oman.

25 The phrase is not entirely satisfactory because some executive functions will be vested in him or her, although most will be in the head of government.

26 The French presidency is sui generis. The President of the Republic is dominant in the Constitution of the Fifth French Republic (1958), but specified constitutional powers are shared with the Prime Minister.

27 He reigned from about 924 to 939 over Wessex and Mercia, and established direct rule over Northumbria in 927.

28 S. Reynolds, “Law and Community in Western Christendom” [1981] American Journal of Legal History 206.

29 This was the power inherent in what was to become known as the royal prerogative.

30 For the development of the office of Prime Minister and of the great offices of state, see F.W. Maitland, The Constitutional History of England (1908), pp. 387-400; Sir William Anson, The Law and Custom of the Constitution (4th ed., 1935 by A.B. Keith), vol. II, chapter III; Rodney Brazier, Ministers of the Crown (1997), chapter 1.

31 See R. Brazier, “The Crown and Constitutional Reform” in M. Sunkin and S. Payne (eds.), The Nature of the Crown (1999), chapter 13.

32 See Martin Loughlin, “The State, The Crown and The Law” in Sunkin and Payne, op. cit., chapter 3.

33 Plucknett, op. cit., p. 570.

34 Arts. 80-93.

35 Arts. 5-19.

36 In the French Constitution the President of the Republic is, indeed, “the man in charge”: John Bell, French Constitutional Law (1992), p. 15.

37 Arts. 54-61.

38 An executive president, by contrast, does not facilitate the government, because he or she is the government.

39 This will not apply, of course, in states with fixed-term legislatures, except where the constitution permits the legislature to be dissolved in order to break a political deadlock, which may require the head of state's consent.

40 In Barbados the duty of the Prime Minister to keep the Governor-General fully informed concerning the general conduct of the government is enshrined in Art. 71 of the Constitution; against that legal background the Governor-General is able to exercise his or her conventional rights.

41 Parliament Act 1911, ss. 1, 2 as amended by the Parliament Act 1949, s. 1.

42 As in, e.g., Belgium, Italy, or the Netherlands.

43 As in, e.g., Norway, where the King is required first to consult the Council of State.

44 For commentary on Art. 5 see Bell, op. cit., pp. 14-15.

45 Constitution of the Federal Republic of Germany, Art. 115a.

46 Constitution of the Russian Federation, Art. 87(2). Other emergencies are also provided for: see Art. 88.

47 For a consideration of those powers see Rodney Brazier, Constitutional Practice (3rd ed., 1999), pp. 189-197. See also Geoffrey Marshall, “The Crown and Bagehot's Dubious Death Warrant” [2002] P.L. 4.

48 These prerogative powers and rights are considered further below in section II.B.

49 Act of Supremacy 1559, supplementing the original Act of Supremacy in 1534. The monarch is also Defender of the Faith, a title recognised in statute in England in 1554. The Royal Titles Act 1953 authorises the Queen to adopt such style and titles as she thinks fit.

50 Union with Scotland Act 1706, Art. XIX.

51 The title was accepted by a meeting of Commonwealth Prime Ministers so that India, as a republic, could continue as a member of the Commonwealth, on the understanding that all members would recognise George VI as its Head.

52 They include (in relation to Scotland and Northern Ireland) the power to assent to Bills, and (in relation to Scotland) the power to appoint the First Minister. See further R. Brazier, “The Constitution of the United Kingdom” (1999) 58 C.L.J. 96 at pp. 117-123.

53 Though it is noticeable that the Russian Constitution requires the presidential oath of office to be administered “in a ceremonial atmosphere”: Art. 82(2).

54 It is clearly harder for an elected president than for a monarch to be seen in that way, because he or she may have a political past: see below section II.C.

55 Prochaska, op. cit., p. 223.

56 The seven-year term of office enjoyed by Presidents of the Fifth French Republic was one of the longest permitted in contemporary democratic republics, and it was reduced to a five-year term as from the presidential elections in 2002. Only Francois Mitterand will have served two full seven-year terms.

57 Indeed, some constitutions prescribe a minimum qualifying age for presidential candidacy—35 years, for example, in the United States Constitution, Art. II, section 1. Victoria was only 18 when she succeeded; the present Queen was 25.

58 Tom Paine, Rights of Man (ed. H. Collins, 1971), p. 200.

59 For an excellent recent analysis see Philip Pettit, Republicanism: A Thoory of Freedom and Government (1997). See also Biancamaria Fontane, The Invention of the Modern Republic (1994), and P.P. Craig, Public Law and Democracy in the United Kingdom and the United States of America (1990), chapter 10.

60 I am deliberately leaving out of account republicanism in Ireland.

61 Prochaska, op. cit., pp. 211-228 gives a summary of the main republican arguments as they were advanced in the late twentieth century.

62 Tony Benn and Andrew Hood, Common Sense: A New Constitution for Britain (1993); see also Mr. Benn's Commonwealth of Britain Bill, Bill 161 (1990-1991).

63 Piers Brendon, Our Dear Queen (1986); Edgar Wilson, The Myth of the British Monarchy (1989); Jonathan Freedland, Bring Home the Revolution: Caee for a British Republic (1999).

64 The Guardian, in a series of articles which started in 2001. It also supported a number of court cases designed to challenge under the Human Rights Act 1998 the validity of various laws concerning the Crown.

65 Anthony Barnett (ed.), Power and the Throne: The Monolchy Dbbctte (1994); Tom Nairn, The Enchanted Glass (1988); Stephen Haseler, Britain's Ancien Regime (1991), The End of the House of Windsor (1993).

66 Because of the official censorship surrounding Edward VIII's relationship with Mrs. Simpson— connived at by newspaper editors and the BBC—the public had no direct knowledge of it until it would have been too late to affect the decision to abdicate.

67 Blackburn and Plant, Constitutional Reform: The labour Government's Constitutional Reform Agenda (1999), p. 142.

68 As does Freedland, op. cit., p. 192.

69 All but 92 hereditary peers were ejected, and the Government remains committed to removing them in the next and final stage of reform legislation. See House of Lords: Completing the Reform, Cm. 5291 (2001), para. [2]. An earlier small wound had been inflicted on the hereditary principle by the Peerage Act 1963, which enables hereditary peers to disclaim their peerages, thus overruling the strict principle which had been upheld in Re Bristol South East Parliamentary Election [1961] 3 All E.R. 354.

70 Even the Conservative Opposition ceased defending the hereditary principle during the debates on the House of Lords Bill 1988-1999, despite the party's stout defence of it as late as the 1997 General Election.

71 There is a justification, which will be examined later: see below section II.C.

72 Many, perhaps most, of the criticisms of “the monarchy” in the last decade or so were in fact criticisms of members of the royal family other than the Queen. There would be no room for such criticism of an extended official family in a republic because a president would not have one.

73 Switzerland was a republic long before it adopted its modern constitution.

74 Brazier, R., “How Near is a Written Constitution?” (2001) 52 Northern Ireland Legal Quarterly 1 at pp. 78Google Scholar.

75 J.N. Figgis, The Divine Right of Kings (1896).

76 As in the United States, the opening words of whose Constitution must be some of best-known constitutional words: “We the People …”. The Constitution of the Russian Federation also states in its preamble that the people have adopted it.

77 As in Germany: see the Preamble to the Basic Law of the Federal Republic of Germany (1949).

78 Subject to European Community law. But the ultimate legal power of the Queen in Parliament is not restricted by the Human Rights Act 1998.

79 But even that process has been criticised as amounting to no more than the shifting of effective power from one source of power at the apex of the constitution, the monarch, to the next place down, the Government: according to this view the original source of “top-down” power has been replaced by another: Freedland, op. cit., pp. 19-22, 183-185, 192.

80 The substantial doubt arises from the existence of elective dictatorship (which ensures that through the exercise of party discipline the Government has great political power, largely unrestrained by either House of Parliament), and from the absence of effective accountability for the use of the royal prerogative (on which see below).

81 In wholly exceptional circumstances the monarch could use her personal discretion without ministerial advice.

82 These alternative methods will be considered later.

83 The nearest thing to such an inquiry was the Select Committee investigation which resulted in the Report of the Select Committee on the Civil List (H.C. 91 (1971-1972)).

84 For example, the United States Constitution, Art. II, section 4 (impeachment). Prescribed maximum presidential terms ensure that presidents spend only a limited time in office.

85 President Clinton's sexual antics did not prevent his re-election in 1996, and indeed an impeachment attempt based on them failed subsequently.

86 Freedland, op. cit., p. 191.

87 At a stroke, republicans argue, the controversy over royal finances would end. A president would be provided with necessary offices, an official residence, appropriate official support, and an annual salary, but no more.

88 For attempts to do so see, e.g., A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law (12th ed., 1997), chapter 12; de Smith and Brazier, Constitutional and Administrative Law (8th ed., 1998), chapters 6, 7, 8; Rodney Brazier, Constitutional Practice (3rd ed., 1999), chapters 2, 3, 9; Vernon Bogdanor, The Monarchy and the Constitution (1995), chapters 2-6; Sir Ivor Jennings, Cabinet Government (3rd ed., 1959), chapters XII, XIII.

89 That view has usually been advanced as a political proposition rather than as one of law. It is said that as a matter of political reality a constitutional monarch just would not use such powers in a contemporary setting.

90 The monarch's reserve powers, by definition, would not be exercised on advice. Those powers include insistence on, or refusal, of a dissolution, refusal of assent to legislation, dismissal of a Government, and the appointment of a Prime Minister in the monarch's personal discretion without following convention.

91 See below, section III.A.

92 See Sir William Wade, Constitutional Fundamentals (revised ed., 1989), chapter 4; Sunkin and Payne, op. cit., especially chapters 4, 7, 9, 11, 13.

93 In a series of parliamentary questions in 2001 individual Ministers were asked how many of their decisions within the previous month had been made using royal prerogative powers. All replied that records were not kept of such decisions, nor would it be practicable to do so. See, e.g., 373 H.C. Deb. 207 (written answers 23 October 2001). Those replies testify to the pervasive nature of the prerogative in ministerial power.

94 Brazier, “Constitutional Reform and the Crown”, pp. 354-361.

95 See further section III.A below on the attitudes of the political parties in this debate.

96 This is considered below, section III.B.

97 For example, it can be argued that while the Government held referendums on devolution in order to ensure that it was actually wanted by the people affected, Ministers also wanted to enhance their political authority for the consequent legislation.

98 Several individuals could be listed from United States and European history. President Leone of Italy, for instance, had to resign in 1978 amid allegations of fiscal misconduct.

99 Though not all: for Stephen Haseler, it is the argument that monarchy sustains the class system which is paramount.

100 A number of statutes fit within that category, ranging in time from the Accession Declaration Act 1910 to the Regency Acts 1937-1953.

101 The parliamentary vote in the aftermath of the Abdication is the only exception in the twentieth century.

102 It was made clear on her behalf during the Australian referendum on the monarchy in 1999 that the Queen would only wish to remain head of state for as long as that was the wish of individual realms.

103 See below section IV.

104 See Brazier, “Constitutional Reform and the Crown”, pp. 346-347.

105 Notably in relation to the Home Rule crisis in 1914 and the formation of the National Government in 1931.

106 As Prime Minister, Edward Heath merely reported on the political situation personally to the Queen on the day after the February 1974 poll and explained that he was trying to form a coalition, and then he formally resigned on the following Monday having failed to do so.

107 The Conservative Party only adopted formal balloting for its leader in 1965. Before then the Queen relied on the party's own soundings to produce a new leader as required. Such an informal system was always open to conflicts of evidence, notably in 1963 when Harold Macmillan's conclusion that Lord Home was the predominant choice of the party to succeed him was, and has remained, controversial. But Macmillan's soundings were apparently so methodical that it is difficult to see how the Queen would have been justified in launching her own inquiries. See Lord Blake, “Constitutional Monarchy” in D. Butler et al. (eds.), The Law, Politics and the Constitution (1999).

108 Civil servants, of course, are not elected either, and no one suggests that they should be.

109 As Bogdanor puts it, “A constitutional monarchy settles beyond argument the crucial question of who is to be the head of state, and it places the position of head of state beyond political competition”: Bogdanor, op. cit., p. 301. He adds (more controversially in my opinion): “In doing so, it alone can represent the whole nation in an emotionally satisfying way; it alone is in a position to interpret the nation to itself. That is its central function, its essential justification and rationale; everything else is but embellishment and detail.”.

110 Hence the creation of the electoral college, to which voters would send the wise and the good to choose the best candidate for president and the second best candidate for vice-president.

111 Though republican France notably provides magnificent military ceremonial for state and other occasions.

112 Commonwealth of Australia Constitution Act 1900, s. 128.

113 C. Munro, “More Daylight, Less Magic: the Australian Referendum on the Monarchy” [2000] P.L. 3. For a defence of the Crown in Commonwealth parliamentary systems see Nigel Greenwood, For the Sovereignty of the People (1999). On the referendum from the British perspective see Ben Pimlott, The Queen: Elizabeth II and the Monarchy (2001 ed.), pp. 671–679.

114 See Republic Advisory Committee, An Australian Republic: The Options (Commonwealth of Australia, 1993).

115 Assuming that a preferential voting system was used, or that the final choice was between only two candidates.

116 Prochaska, op. cit., p. 218.

117 Bogdanor, op. cit., p. 200.

118 The Emperors of China and Japan reigned over empires even further east.

119 Sir Harold Nicolson, King George V: His Life and Reign (1952), p. 106.

120 Bogdanor, op. cit., p. 299.

121 “The Crown's enemies have always been more absorbed in tearing down than building up, better at theory than the practicalities of what would fill the void left by the departed sovereign”: Prochaska, op. cit., p. 217.

122 Tony Blair's remark of the Queen in a public speech on 20 November 1997 marking her Golden Wedding that “You are simply the best of British” was typical of the respect which Prime Ministers have had for her.

123 In round figures it was lost by 3,694,000 to 386,000.

124 318 H.C. Deb. 2203-2233 at col. 2220 (11 December 1936) (republican amendment to the Abdication Bill).

125 New Labour: New Life for Britain (Labour Party, 1997). It has been said that this was included in order to prevent the risk of disproportionate attention being attracted to the issue: Blackburn and Plant, op. cit., p. 139.

126 Even before those elections there was little enthusiasm among Labour MPs for the monarchy. In a poll of Labour MPs in 1996, only 11 supported the monarchy “without serious reservation”: The Independent, 18 February 1996.

127 Blackburn and Plant, op. cit., p. 140.

128 Lord Irvine of Lairg LC, in declining to support a referendum on the abolition of the monarchy, said that the Government believed that the national interest and desire was for the country to continue as a constitutional monarchy. He added that the Queen personified national cohesion, Commonwealth unity and political stability, and that support for the monarchy was “rock solid”: 628 H.L. Debs. 1126 (21 November 2001).

129 See, e.g., Here We Stand: Proposals for Modernizing Britain's Democracy (Liberal Democrat Federal White Paper No. 6, 1993); see also Reforming Governance in the UK (Liberal Democrat Policy Paper No. 40, 2000) in which radical reform of prerogative powers is envisaged.

130 For a similar exercise in a realm reconsidering its whole constitutional system, see Report of the Barbados Constitution Review Commission (1998).

131 Even assuming that an official inquiry recommended fundamental change the Government might, of course, decide to do nothing with the report.

132 This was done, for example, by the present Government, which outlined its constitutional reforms in its 1997 General Election manifesto, following the precedents of the Conservatives in 1970 with their commitment to try to obtain membership of the European Communities, and of the 1974 Labour Government with its devolution plans.

133 R. Brazier, “Defending the Hereditaries: the Salisbury Convention” [1998] P.L. 371.

134 The Conservative Opposition in the House of Lords has asserted that because the original reason for the adoption of the Salisbury convention—the hereditary nature of the second chamber—has disappeared with the House of Lords Act 1999, the basis for the convention has gone with it.

135 See, e.g., Committee on Standards of Conduct in Public Life, The Funding of Political Parties, Cm. 4057 (1998), chapter 12; Marshall, Geoffrey, “The Referendum: What? When? How?” (1997) 50 Parliamentary Affairs 30710.1093/oxfordjournals.pa.a028728CrossRefGoogle Scholar.

136 Admittedly, in the last case, against the background of the previous use of border polls in Northern Ireland.

137 Certainly the present Government—more liberal in the use of such votes than any of its predecessors—does not think so. It did not use referendums in relation to the “incorporation” of the European Convention on Human Rights, or over House of Lords reform.

138 Political Parties, Elections and Referendums Act 2000, Part VII.

139 The 2000 Act is not a comprehensive referendum code, in particular lacking any guidance about the circumstances in which a referendum should be held.

140 The convention relating to the royal style and titles has partly lapsed. Commonwealth realms which have adopted a separate title for the Queen as head of state have not sought the assent for that of the other realms. But the convention relating to the succession remains: indeed, that was the legal advice given recently to the Government: see the Prime Minister at HC Deb., vol. 341, col. WA 57 (13 December 1999).

141 I do not intend to deal with the nature of the financial settlement which would be required.

142 And, indeed, separately Queen of each of the individual states which make up the Commonwealth of Australia. It was possible, had the 1999 Australian referendum gone the other way, that some Australian states would have wished to keep the Queen as their head of state.

143 See above note 49.

144 Act of Supremacy 1559.

145 See the Prime Minister's comment above, note 4.

146 The title Head of the Commonwealth was included in the proclamation referred to above in note 49.

147 Member nations of the Commonwealth agreed at the time of the Queen's accession to recognise her as Head of the Commonwealth, although the title is not vested in the British Crown.

148 Liberal Democrats, Here We Stand: Proposals for Modernizing Britain's Democracy (1993), p. 25.

149 The party said in a policy paper that “[m]assive power is exercised by executive decree without accountability to Parliament”: A New Agenda for Democracy (Labour Party, 1993).

150 The Order of the British Empire, which was created in 1917, has survived the demise of that empire.

151 Referendums on the status of Northern Ireland, for example, cannot be held more frequently than every seven years: Northern Ireland Act 1998, s. 1(1), and Sched. 1, para. [3].