Whenever there is a high-profile royal event such as a birth or a wedding, it invariably generates a wide spectrum of reactions. Most are usually positive, but there will always be some people who feel compelled to voice their displeasure. Some of these people clearly dwell among the lunatic fringe (such as the commentator, who shall remain nameless and linkless, who wants the Royal Family imprisoned for “crimes against humanity”), while others just don’t understand the monarchy’s role in the British constitution. Many of these people like to claim that the Queen doesn’t actually do anything, as if her entire life has been spent sitting around Buckingham Palace eating bonbons and watching Coronation Street while cashing hefty checks from the taxpayer.
In reality, of course, the monarchy is an integral part of the British constitution. The Queen’s duties fall into two main categories: those she undertakes in her capacity as head of state, and those she undertakes in her capacity as head of the nation.
Her head-of-the-nation duties are probably the most visible aspect of the monarchy’s work. They include the endless parade of ribbon cuttings, hospital visits, school visits, and ship christenings. While these things have no constitutional importance, it would be wrong to dismiss them out of hand as unimportant. They are a way to highlight local achievement and support worthy causes. In a way, it’s like a non-partisan version of our president’s celebrated bully pulpit. From the British perspective, the Royal Family is uniquely well suited to this task because, unlike a politician, they don’t have political baggage. Here in Wisconsin, for example, Governor Walker is booed and heckled even when undertaking purely ceremonial duties.
Although arguably less prominent in the public’s mind, the Queen’s head-of-state duties are her raison d’être. The most visible example is probably the State Opening of Parliament, but most of her constitutional work is done behind the scenes. She summons and prorogues Parliament. She makes a dizzying array of appointments, ranging from the Prime Minister to Church of England parish priests. There’s also lots and lots and lots of reading. In addition to briefings from the British government, she also receives regular communications from the 15 other independent realms of which she is Monarch. By all accounts, the Queen takes this aspect of her job very seriously. There’s an anecdote about how, during his weekly audience with her, Winston Churchill was once caught flat-footed when the Queen wanted to discuss an obscure Foreign Office telegram that Churchill hadn’t bothered to read. When he returned to Number 10, he ordered his Private Secretary to make him read everything!
The Queen essentially does a lot of the same things that our president does, though there’s one key difference: she is supposed to act on the advice of the government of the day rather than her own personal whims. However, that convention is counterbalanced by one that gives the Queen three key rights in relation the government: the right to be consulted, the right to encourage, and the right to warn.
Besides the convention mentioned above, there are actually few formal limits on the Queen’s power. In the US, we enshrined the notion checks and balances in our written constitution. If Obama vetoes a bill, Congress can override his veto. If he nominates an unsuitable candidate for high office, the Senate can refuse its advice and consent. But there are no such limitations on the Queen’s power. If she were to refuse Royal Assent to a bill, there’s no mechanism for Parliament to override her. Similarly, Parliament has no formal say on the majority of royal appointments. In the absence of formal checks and balances, Britain has developed informal ones.
Because of the limitations on her power, many people (both in Britain and the US) assume that the Queen is little more than a figurehead without any influence over political affairs. But since her interactions with the government are totally confidential, it’s hard to measure the extent of her influence. However, Anne Twomey, a Professor of Constitutional Law at the University of Sydney Law School, has managed to unearth some tantalizing tidbits about the Queen’s activities in the political sphere.
In 1979, the government of the Australian state of New South Wales decided to introduce legislation to abolish judicial appeals to the British Privy Council and to require the Queen to appoint the state Governor on the advice of the Premier of New South Wales instead of the British Foreign Secretary. As usual, these changes were announced in the governor’s Speech from the Throne, a copy of which was duly sent to the UK.
At the federal level, the Queen reigned as ‘Queen of Australia’ and acted on the advice of her Commonwealth ministers. But the states were technically dependencies of the British Crown, and this created an anomalous situation where the Queen still acted on the advice of the British government when dealing with state matters.
The British Foreign Office had some concerns about the constitutionality of New South Wales’ proposals, but it felt that the best course of action would be for the Queen to respond with the usual formal acknowledgement and then the UK government could raise the matter orally through diplomatic channels. The Queen, however, disagreed with this approach. She wanted to warn the Governor right off the bat that the Foreign Secretary might ask her to veto the bills. The British government yielded, and the Foreign Secretary sent a warning letter to the Governor. Britain’s High Commissioner to Australia opposed this approach, but he was told that nothing could be done since the Queen had already approved the message.
In a classic example of bad timing, the Governor of New South Wales received the Foreign Secretary’s warning on the same day that Parliament sent him the bill to abolish appeals to the Privy Council. Rather than risk a royal veto, the state government decided to let the bill lapse even though it had been passed with bipartisan support. What’s interesting about this episode is that it demonstrates how the British government was willing to change course based on input from the Queen.
A few years later, when Australia was negotiating with Britain over the legislation that would sever the remaining constitutional ties between the two countries, the state governments pushed for the right to advise the Queen on state matters in place of the British government. The Queen was not happy with this proposal because she feared being put in an untenable position if a state government advised her to do one thing while the Commonwealth government advised her to do something else. Her reluctance was enough to sway the federal Prime Minister, who told the state governments that he would not recommend that the Queen accept advice from them since he didn’t want to put her in the “embarrassing” position of having to reject ministerial advice. Even when the federal government eventually came around to the states’ point of view, the Queen still demurred.
Ultimately, the Australian federal government felt it had no choice but to give its full backing to the states’ proposal. Until then, it had refused to tender constitutionally binding advice to the Queen on the matter, but it soon became clear that there was no other option. The Queen was told that, even if she disagreed with the idea, the Commonwealth would stand its ground. If she remained opposed to receiving direct advice from the states, she would have to formally reject the federal government’s advice, which would almost certainly have started a constitutional crisis of epic proportions. In the face of a resolute Commonwealth, the Queen reluctantly agreed to accept the advice.
Although she had to accept the Commonwealth government’s advice, the Queen won concessions from Australia. She was keen to establish limits on the state government’s ability to advise her when she was present in a state, and the Australia Bills were amended in light of her concerns. Clause 7(2) was changed to make it clear that the Queen’s functions in regard to a state were exercisable only by the Governor in order to prevent the Queen from being asked to override a Governor’s decision, while clause 7(4) provided that the Queen was “not precluded” from exercising any of her functions when she was actually present in a state. According to Anne Twomey’s book The Chameleon Crown: the Queen and Her Australian Governors, the latter change was made because the Queen wanted to be able to decline a state Premier’s request to exercise her powers personally (pg. 252). The original draft of this sub-clause actually went so far as to explicitly state that the Queen was not obligated to accept advice from state Premiers while in the state, but the Commonwealth objected to language that seemed to enshrine in statute the idea that a constitutional monarch could disregard ministerial advice. Instead, they opted for the “not precluded” formula, which left things suitably vague.
However, the states also agreed to a convention that the Queen would only exercise her powers within a state after prior and mutual agreement between the Palace and the state government. It was a win for both sides. The Queen could take comfort in the fact that state Premiers couldn’t force her into a constitutionally awkward position, while the state governments were reassured that the Queen would only act with their consent.
So what, then, do these events tell us about the Queen? For starters, they suggest that the process of advising the Queen is more complicated than one might expect. Ministers first submit informal advice that is not considered constitutionally binding; it is only when she has accepted the ‘informal’ advice that formal, binding advice is tendered. This is a nice example of how flexible constitutional conventions can be in the Westminster system: it allows the Queen to make representations regarding a proposal while preserving the requirement that she ultimately acts on ministerial advice.
Although Twomey’s findings suggest that the Queen isn’t quite the rubber stamp of popular conception, that doesn’t mean that she’s going around frustrating the democratic process at every opportunity. Both of the examples Twomey uncovered involved situations uniquely personal to the Queen, so it’s understandable that she would be more willing to assert herself in cases like those. Unfortunately, it’s unlikely that we’ll learn more about her relationship with her governments anytime soon. Communications with the Sovereign are totally exempt from disclosure under the UK’s Freedom of Information Act for a minimum of 20 years (and in many cases, they could remain hidden for a lot longer: if the Sovereign is still alive when the 20-year period expires, they must remain classified for the remainder of their life, plus five years). But Twomey’s claim that the Queen is a canny political operator who is adept at using “soft power” certainly seems plausible.
Codex Lochianus 