The Queen and Her Prime Ministers

[Mbruno]

I cannot see where this would reflect on the Queen and the monarchy at all as she acted as she was supposed on the advice from her Prime Minister. I believe it would have looked worse for the constitutional position of the monarchy if the Queen had refused to act on Mr. Johnson's advice.

All of this lies solely on the head of Boris Johnson and nowhere else as far as I can see. From the one report that I've read from the BBC, some are calling for Boris Johnson now to step down as Prime Minister.

Then again, I'm American and not overly educated in the ways and means of the UK's constitution. I do have to say though that all of these recent developments kind of remind me of a Chinese curse "may you live in interesting times".

What I was trying to say is that, prior to the ruling, the general consensus was that, if the Court ruled that the PM’s advice was unlawful, it would mandate the PM to advise the Queen to issue another order recalling Parliament, which in practice would require a hasty Queen’s speech.

That was not, however, what happened. Not only did the Court say that the PM’s advice was unlawful , but also it quashed the prorogation order itself meaning, in Lady Hale’s words, that Parliament in practice “ was never prorogued” and the order read by the Lords Commissioners was “ a blank piece of paper”.

That affects the Queen’s constitutional position as it creates a precedent under which the Courts can revoke the use of a royal prerogative based on the claim that the Queen was wrongly advised. The orthodox position , reaffirmed in this case by the London High Court, was that royal prerogatives were not subject to judicial review. That is now gone, based probably on partisan politics.

I suppose it might also have legal implications in other Commonwealth countries like Canada where prorogation has been used several times in s similar way by prime ministers.

 

[wyevale]

The Supreme Court has just torn up 400 years of the British Constitution and the separation of powers and appointed itself as superior to the Government, Parliament and the Crown..

We are in 'uncharted waters' - the Judiciary are now seen as nakedly political,, yet they are un-elected and that is unprecedented and likely a disaster for their 'standing' in the United Kingdom.

 

[Duc_et_Pair]

The Queen knew she was lied to, without any shame and straight into her face, by the Lord President of the Privy Council (Jacob Rees Mogg). And this extraordinary act, sending Parliament home in an utmost crucial period in British Constitution, was simply met with a standard nod and "approved", as if it was the purchase of a new hat.

The Queen has shown herself not to be an absolute Defender of the rights of Parliament but luckily the eleven Justices of the Supreme Court have said the words the Queen had to say in that private telephone conversation with the Prime Minister (Lady Hale mentioned it) before the three Private Councillors headed to Balmoral: "Prime Minister, your proposal is unlawful, void and can not have effect".

Luckily Lady Hale and the other ten Justices had more guts. This was the utmost exposition of the uselesness of the monarchy in the current constitution. Not Elizabeth's fault: she simply has no backstop (there is that word again) to rely on, correcting abuse of power: a written Constitution, vesting her rights in concrete.

 

[MARG]

I don't see the issue with the Queen. She doesn't just sign what is shoved at her.

1. She relies on the integrity of the. Prime Minister, and
2. She relies on those who administer the rules of Parliament, Civil Servants, to ensure the proper checks and balances are followed.

Both let her and the Country down. BJ lied by omission, the rest allowed themselves to be rushed into not doing their due diligence.

Strangely, I believe HM will think the betrayal of the people more serious than the betrayal of her.

 

[wyevale]

Prorogation is a matter reserved to the Crown, is the Court now intending to put itself above the Crown ?

11 Judges have the temerity to overturn this centuries old power, without reference to any elected or representative persons whatsoever..

 

[Jacknch]

I don't think this court ruling will affect the Queen or her constitutional position directly as I think most people would (or should) recognise that she is extremely limited in her ability not to act on the advise of her prime minister.

However, it does highlight the fact that the Monarch is clearly vulnerable to being mislead. As such, what recourse might the Monarch have to allow her to refuse or delay consent at a privy council meeting?

Obviously we can't go back in time as we only now find that the request to prorogue parliament was unlawful - had the Queen known at the time of the privy council meeting that it would be unlawful, one wonders how she would have reacted.

 

[wyevale]

"if power without law may make laws, may alter the fundamental laws of the kingdom, I do not know what subject he is in England that can be sure of his life, or anything that he calls his own."

King Charles 1st at his trial in 1649, and absolutely 'on point' for today's travesty of 'justice'..

 

[Gawin]

But Mbruno and wyevale both make important points. The court didn't simply rule that Johnson's advice was illegal, it went another step and voided the Queen's Order in Council. By doing so it ran roughshod over the Queen's (admittedly symbolic) prerogative or right to prorogue Parliament. As Mbruno pointed out, this symbolic right would have been respected and left intact by requiring Johnson to advise the Queen to call Parliament back into session.

 

[victor1319]

It was a surprising decision. The Supreme Court ruled that the PM’s advice was unlawful, which was a concrete possibility, but it went further than that by also declaring the Queen’s order in Council null and void. That has an impact on the constitutional position of the monarchy and on the reach of the royal prerogative.

Victorian judges probably would never have made such a ruling, but judicial activism has now become a reality in most Western countries.

I think, you are right about the Victorian judges.

I mean, Queen Elisabeth II has not even a driver's license for example - she is normally above the law, a case of a permanent immunity from the law. And this is a good thing, that the Queen normally can't be harassed by the often political, activist courts.

BUT: She has accepted, to pay income taxes! Sure, if she does not, she won't be thrown into the Tower - somebody else will be shackled there, the poor chap, who manages her finances. But she has accepted, that a judge can look into her finances, surely only if the judge has a suspicion - but... she is here a subject of the law, not over, but under the law.

One can't do this so easily with the tax and income declarations of the American President Trump for example - he is a Head of State and not easy to bully.

The English Monarchy is slowly rendered from a political institution into a mere decoration.

 

[Jacknch]

The full statement of the Supreme Court given by Lady Hale:

https://www.bbc.co.uk/news/uk-politics-49810680

It also addresses the issue concerning Courts being above the Crown.

 

[Rudolph]

Victorian judges probably would never have made such a ruling, but judicial activism has now become a reality in most Western countries.

You hit the nail on the head. Judges just love to legislate from the bench.

 

[Duc_et_Pair]

But Mbruno and wyevale both make important points. The court didn't simply rule that Johnson's advice was illegal, it went another step and voided the Queen's Order in Council. By doing so it ran roughshod over the Queen's (admittedly symbolic) prerogative or right to prorogue Parliament. As Mbruno pointed out, this symbolic right would have been respected and left intact by requiring Johnson to advise the Queen to call Parliament back into session.

Not "back into session". Parliament IS in session as Lady Hale described it: " [...]
This means that when the royal commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 justices. [...] "

 

[Duc_et_Pair]

You hit the nail on the head. Judges just love to legislate from the bench.

By lack of a Queen fighting as a lioness for the rights of "our Sovereign Parliament" (as Brexiteers always claim....) at least there are institutions maintaining the rule of Law.

Luckily it were the UK's most supreme Justices, in maximum assembly and with unanimous voice. Imagine the outcry if it was the European Court of Justice. The utmost parody would be Brexiteers going to the EU Courts to challenge this... (not possible, as far I know).

 

[victor1319]

The full statement of the Supreme Court given by Lady Hale:

https://www.bbc.co.uk/news/uk-politics-49810680

It also addresses the issue concerning Courts being above the Crown.

From there: The decisive sentence seems to be - "However, there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power."

Hmmm, well in a country without a constitution and case law, this might be the case... But I would say, it is rather the electorate via the Parliament which decides not only about the prerogative power of the Monarch, but about the Monarchy altogether.

 

[Rudolph]

Boris Johnson: “prorogation has been used for centuries without this kind of challenge”

But when it comes to stopping Brexit both the court and parliament have tossed hundreds of years of precedent out the window.

 

[Duc_et_Pair]

From there: The decisive sentence seems to be - "However, there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power."

Hmmm, well in a country without a constitution and case law, this might be the case... But I would say, it is rather the electorate via the Parliament which decides not only about the prerogative power of the Monarch, but about the Monarchy altogether.

Well, in earlier rulings on royal prerogatives, and today by Lady Hale, it was mentioned: "the King ( = Government) hath no prerogative, but that which the law of the land allows him".

This makes the use of prerogative justiciable because it are the Courts (who else?) to decide if "the law of the land" has been respected.

 

[Rudolph]

“Without wishing to overstate this, the #SupremeCourt has declared itself supreme over the Crown: we no longer live in a Constitutional Monarchy. That is a seismic shift, if not an unglorious revolution.”

- Adrian Hilton

 

[Duc_et_Pair]

Boris Johnson: “prorogation has been used for centuries without this kind of challenge”

But when it comes to stopping Brexit both the court and parliament have tossed hundreds of years of precedent out the window.

If Boris had used this prorogation to write a Queen's Speech (three to five days). Yes.
But he was not even yet in power and prorogued for five weeks. As Lady Hale remarked:

" Proroguing Parliament is quite different from Parliament going into recess. While Parliament is prorogued, neither House can meet, debate or pass legislation. Neither House can debate Government policy. Nor may members ask written or oral questions of Ministers or meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch after the Queen’s Speech.

During a recess, on the other hand, the House does not sit but Parliamentary business can otherwise continue as usual. This prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the Constitution of the United Kingdom on 31st October.

Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme. "

 

[Duc_et_Pair]

“Without wishing to overstate this, the #SupremeCourt has declared itself supreme over the Crown: we no longer live in a Constitutional Monarchy. That is a seismic shift, if not an unglorious revolution.”

- Adrian Hilton

The Crown allowed this to happen. The courtiers and the Queen did nothing to this blatant abuse of the royal prerogative.

Baldrick Cummings to Blackadder Johnson: "I have a most cunning plan, m'lord..."

And the current successor of Blackadder's silly Prince-Regent sleepwalked in their trap, with the eyes wide open.

 

[Jacknch]

Just a reminder that this is not a platform to discuss Brexit - let's please stay closely on the topic of the Queen and her Prime Ministers as far as they relate to current events.

 

[victor1319]

Well, in earlier rulings on royal prerogatives, and today by Lady Hale, it was mentioned: "the King ( = Government) hath no prerogative, but that which the law of the land allows him".

This makes the use of prerogative justiciable because it are the Courts (who else?) to decide if "the law of the land" has been respected.

Yes, but this is the mere extent of the prerogative, not the existence of the prerogative itself. But the court claims with the sentence cited by me ( "However, there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power.") something different. Namely, that it is, that " the courts have jurisdiction to decide upon the existence...".

Btw "Law of the Land" can be anything: From Human Rights down to regional norms of the Gin production! And I think the Queen needs one now. Poor Lizzy! From Monarch to Museum Royal in her lifetime...

 

[Gawin]

The Court ignored the Queen's purely symbolic prerogative and went straight to the heart of the matter: it's actually the Government (not the Queen who reigns but doesn't rule) who can prorogue Parliament but the "courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries."


It will be interesting to see what the UK constitutional experts say about this.

 

[Pranter]

I feel your pain...seems like no matter the form of government you have Judges who think they can legislate from the bench.


So for the U.K. what does this really mean..as in will anything happen because of the ruling or is it just going to be political posturing and talking points?



LaRae

 

[Duc_et_Pair]

Yes, but this is the mere extent of the prerogative, not the existence of the prerogative itself. But the court claims with the sentence cited by me ( "However, there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power.") something different. Namely, that it is, that " the courts have jurisdiction to decide upon the existence...".

Btw "Law of the Land" can be anything: From Human Rights down to regional norms of the Gin production! And I think the Queen needs one now. Poor Lizzy! From Monarch to Museum Royal in her lifetime...

Constitutionally the Queen has no less power today, than when she started her Reign. But her Prime Ministers, from Churchill to MacMillan, from Wilson to May, all have been careful towards the fragile House of Cards which Britain's unwritten constitution is. It is this Prime Minister, for short term gain (his political goals) he was willing to gamble with the long term: the monarchy, the union, the peaceful cohabitation of people in the home nations.

 

[Duc_et_Pair]

I feel your pain...seems like no matter the form of government you have Judges who think they can legislate from the bench.


So for the U.K. what does this really mean..as in will anything happen because of the ruling or is it just going to be political posturing and talking points?



LaRae

What else? At least there is the rule of Law and not the political whim of the day ("Parliament annoys me. Send it home!")

 

[Duc_et_Pair]

The Court ignored the Queen's purely symbolic prerogative and went straight to the heart of the matter: it's actually the Government (not the Queen who reigns but doesn't rule) who can prorogue Parliament but the "courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries."


It will be interesting to see what the UK constitutional experts say about this.

In all other constitutional monarchies the executive is subject to the rule of Law, ultimately by a Supreme Court. This phenomenon is new in the UK (only 10 years old) but now it differs little from other monarchies (and republics).

People are no bowing and curtseying obedient serfs and peasants anymore. They are modern, well-educated conscious fellow citizens. When a Prime Minister lets the Queen abuse a royal prerogative (in their eyes), I fail to see why they can not fight for their right.

 

[Gawin]

Not "back into session". Parliament IS in session as Lady Hale described it: " [...]
This means that when the royal commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 justices. [...] "

Yes, but that was my point, originally made by Mbruno. The Court didn't simply rule that Johnson's advice was unconstitutional. It took another step and voided the Queen's Order in Council.

 

[Zaira]

Boris Johnson: “prorogation has been used for centuries without this kind of challenge”

But when it comes to stopping Brexit both the court and parliament have tossed hundreds of years of precedent out the window.

Yes, sometimes things must change to address massive challenges in the current time. If the UK governed strictly by how things were understood 20, 50, 100, 200, 300 years ago, a lot of things would be worse off.

Its ridiculous to pretend what Johnson did wasn't a blatant misuse of his power at a crisis time in the UK and that the Queen herself did herself no favors with how she responded. Nonetheless, the real danger to British political and constitutional norm remains Boris himself.

By the by, I always find the term(s) "activist judges" or "judicial activism" to be rather red herrings for a certain dangerous political ideology.

 

[Gawin]

So for the U.K. what does this really mean..as in will anything happen because of the ruling or is it just going to be political posturing and talking points?
LaRae

Parliament will sit tomorrow (Wednesday). I wouldn't want to be in Boris Johnson's shoes.

https://www.bbc.com/news/uk-politics-parliaments-49813642

Its ridiculous to pretend what Johnson did wasn't a blatant misuse of his power at a crisis time in the UK and that the Queen herself did herself no favors with how she responded. Nonetheless, the real danger to British political and constitutional norm remains Boris himself.

Given that not all legal experts believed Johnson's action was illegal plus the present volatile state of British politics I'm not sure the Queen could have refused Johnson's request without being accused of taking sides, something she has always wished to avoid. But you're right, for some the Queen's hands have been sullied.

https://news.sky.com/story/exclusiv...torney-general-suspension-was-lawful-11818599

Unfortunately this whole affair (Johnson's request and the court's ruling) has exposed the almost robotic and purely ceremonial nature of the Queen's "power." Any future biographies on the life of Elizabeth II will surely mention the political events of the past few months.

 

[wyevale]

It's worth noting, [I think] that it’s not just the PM who disagrees with the Supreme Court's decision today. So do the Lord Chief Justice, the Master of the Rolls and the Lord President of the Queen’s Bench Division.

Lawyers, eh? Experts?