Introduction

The monarchy has been described as ‘the keystone in the arch of the British Constitution’. It is, indeed, an extremely significant part of our culture and history, as well as being central to our system of Government. It will therefore be necessary to begin any discussion of the constitutional issues involved in its abolition by outlining the current functions of the head of state in Britain. As ‘a state without a monarch is a republic’, it will then be necessary to consider the constitutional issues which would be implicit in giving effect to such a republic. These issues will include decisions as to the type of president we would have, how they would be selected, and the scope and extent of powers they would possess.

This discussion is not intended to be one of the relative merits of a monarchy versus a republic: indeed, the decision to abolish the monarchy has already been made. Rather, it is an attempt to answer the question of how this central feature of our constitution could be replaced. In answering this question, I will look to a possible alternative, namely an elected president, and determine whether, and on what basis they could take over the functions of the monarch. Other constitutional issues regarding the selection of such a President must then be considered, along with other constitutional issues arising in this context. As a preliminary issue, it should be noted that in this hypothetical situation, it is Prince Charles, or rather King Charles III, who is on the throne. The Queen’s reign has ended and the Crown automatically passes to the next person in line. The King is ‘not subject to death’. Professor Brazier has commented, ‘In considering changes to the monarchy, it is unrealistic to expect people to ignore who is the present and the next Sovereign’. Any discussion of the monarchy changes dramatically when we are talking about King Charles III rather than Queen Elizabeth II, because the monarchy is a unique constitutional institution in that it is composed of just one person: much may turn on the person in the position. The Queen is an extremely popular monarch, especially given that we are in her Diamond Jubilee year. The same is not true, however for the Prince of Wales, and there has been much discussion in the media regarding his ‘fitness’ to become king. However, it must be remembered that public opinion can be ‘fickle’, and unpopular monarchs have succeeding in regaining their popularity. For example, the monarchy lost popular favour during the seclusion of Queen Victoria after the death of the Prince Consort in 1861, but this did not result in its abolition.

The constitutional implications of abolishing the monarchy would be varied and numerous. Indeed, Professor Brazier has highlighted the fact that ‘a major recasting of the law would be needed’, as well as the ‘adoption of a new constitutional order’. It will be useful to include a brief discussion of some of the functions of the institution of constitutional monarchy, other than those of constitutional nature, in order to give some perspective to our discussion. It is also worth pointing out that some of the monarch’s various functions overlap, so such a discussion will be necessary for this purpose.

The Monarch’s Current Constitutional Role

Broadly speaking, the modern functions of the monarch can be divided into three distinct categories: constitutional functions, ceremonial duties, and a symbolic function. Although for the purposes of this essay, we will focus on her constitutional functions, we must not forget the importance of the symbolic role performed by the monarchy. Indeed, Bogdanor holds this function to be the most important role played by a head of state. This notion of symbolism is in some way related to the monarch’s constitutional functions, because if the monarch is not seen to be representing the state effectively, this will lead to a lack of public support, resulting in an inability to perform constitutional functions. Bogdanor highlights problems in France regarding instability in the constitution and has attributed this, in part, to a lack of a ‘symbol of French unity’ in place of the monarch. This emphasizes the fact that, whilst the symbolic function of a head of state is not strictly constitutional in nature, it can have a bearing on such issues. Brazier has commented that the head of state will have to perform ‘non-constitutional and non-legal functions’ whether Britain is a republic or a monarchy.

The constitutional functions of a head of state can be further divided into three main categories: ‘facilitating the machinery of government, acting as a constitutional umpire, and…acting as a guardian of the constitution’. The monarch’s functions in the United Kingdom are varied, but involve assenting to legislation, granting requests for the dissolution of Parliament, and appointing Ministers to office. The head of state may also be required to act as a constitutional umpire where, for example, there is a hung Parliament, or to ensure that the political parties discharge their functions within the limits of the constitution. However, the rules concerning hung Parliaments have now been put into the Cabinet Manual, and the monarch does not, in practice, determine the decision as to who will form a government. She remained silent in 1923, 1929, 1974 and 2010, simply giving effect to the wishes of the party leaders. It is therefore likely that the Cabinet Manual will continue to provide guidance in such situations, and the role of the head of state in relation to appointing a Prime Minister could be limited to emergency situations.

Some of the monarch’s other powers have been outlined in the Cabinet Manual. It does not however define the prerogative powers, such as the power to deploy the armed forces, or to conclude treaties, of the monarch. Neither does it define the monarch’s reserve powers which could, in principle, be used in a constitutional emergency. In extreme, unforeseen circumstances, the monarch is able to appoint a Prime Minister without ministerial advice, among other things. An important constitutional consideration in abolishing the monarchy would be the question of what would be done with these wide-ranging prerogative powers. The powers are exercised primarily by Ministers in the Queen’s name, and therefore create ‘a serious democratic defecit’. One option would be to simply transfer the powers to the president. However, it must then be considered whether the conventions, which restrict the use by the monarch of the prerogative powers, would apply equally to a President. Edwards argues that a president would have ‘greater democratic legitimacy’ than the monarch. This may justify a decision to allow the president to exercise the prerogatives free from convention, ‘thereby acting as an effective guardian of the constitution’. However, this is unlikely to find favour with the political parties, who may fear that this unrivalled concentration of power in the hands of one individual, without the restriction of conventions, could be used in a way which would not be consistent with their political aims.

Another important constitutional role of the monarch is the advice given by her to the Prime Minister of the day, which Bagehot has captured as ‘the right to be consulted, the right to advise and the right to warn’. This role should not be underestimated: the Queen has unrivalled experience in political issues, and although this essay is concerned with King Charles III, he has had significant involvement with ‘constitutional and governmental affairs’. As these meetings are held in private, we cannot undertake any meaningful assessment of the value provided by the Queen’s advice. However, Margaret Thatcher has revealed that the meetings are ‘quietly businesslike’, and that the Queen possesses a ‘formidable grasp of current issues and breadth of experience.’

Other Constitutional Issues

In the United Kingdom, the constitution has evolved from the Crown by the gradual disposal of power from the Crown to other institutions such as the executive. All of the power in the UK is vested in the Crown and exercised by Ministers on her behalf according to convention. The monarch plays a role in all three of the branches of Government: she gives her assent to legislation; has the power to dissolve Parliament; and judges carry out justice in her courts. This makes the task of abolishing the monarchy extremely complex. In many other constitutions, the head of state’s powers are conferred by the constitution, but in the United Kingdom, the opposite is true. The decision to abolish the monarchy would have the advantage that we would have to start afresh in defining where the powers in our constitution lie, which will undoubtedly lead to greater certainty.

If Britain were to become a republic, the monarch’s role of head of state in the Commonwealth states would be retained, and it would be for the states in question to alter this as required. The Queen also possesses the title of Supreme Governor of the Church of England and Defender of the Faith. These titles could be held by an elected President, regardless of their faith. However, Brazier points out that this issue raises an even more pressing concern: ‘…namely, whether the Church of England should be disestablished’, and concludes that this would be a decision for the Church to take.

The Republic of Britain

As part of their plan to abolish the monarchy, Brazier has suggested that the government may wish to set up an inquiry to look into the changes which would undoubtedly have to be made to the British constitution. The inquiry would look into areas such as the appointment of a President, and the definition of his or her powers.

An obvious constitutional issue would be the question of which type of president we should have. There are, broadly speaking, two presidential models to choose between. The first is the executive president, whereby the headship of state and the headship of government are vested in the same person, the United States being the prime example. This can be contrasted with a non-executive presidency, in which the functions of the head of State and the head of Government remain separate, the president being at a higher level than the Prime Minister in the constitutional system. If the executive model were to be employed in the United Kingdom, it has been argued that the monarch’s current role of ‘constitutional umpire’ should be vested elsewhere, such as in a ‘Supreme court with the legal power to hold the actors within the rules of the constitution’. It is suggested that the best model to adopt in Britain would be the non-executive model, whereby the head of state and the head of government would remain separate. An executive president in the United Kingdom would be ‘untenable’, as it would only serve to increase the powers of the Prime Minister which are, arguably, already excessive.

A related concern is how a president would be chosen. This could be done either by direct election, or indirect election via Parliament. However, note should be taken of the Australian example, where the model of indirect election suggested was rejected by the voters. It seems, then, that the best model for the UK to adopt would be that of direct election. Whichever model was used, the person elected would have democratic legitimacy. There would also need to be a mechanism whereby an unsuitable president could be removed from office. Removal of an executive president could be carried out through impeachment, such as in the United States. If, however, the president assumes a non-executive role, as I suggest would be the case if the United Kingdom were to become a republic, this could be achieved through an automatic dissolution of the office if the president lost a vote of confidence in the House of Commons. Edwards suggests that if the president were to be invested with the same prerogative powers of the monarch, there should be stricter requirements for his removal from office, and to allow the president to be removed from office by the House of Commons would be contradictory of his role as ‘guardian of the constitution’.

A decision would also have to be made on the powers that the president would possess: would their role be mainly symbolic, in which case we might argue that there is no point in changing the current system; or would they play an active role in the running of the constitution. If the president were to retain the powers of the monarch, including the largely undefined prerogative powers, there may be questions as to the impartiality of the person in the role of president, particularly if they come from a political background. In the case of a non-executive president, any party political background would have to be overcome. A ceremonial president would surely have to assume the same character as the monarch so as to remain non-partisan and impartial.

Legislative Requirements

Any Bill introduced by the hypothetical Government to implement the abolition of the monarchy would be protected by the Salisbury convention, as it proposed in their manifesto. It is therefore likely to pass through the House of Lords without difficulty. It would also require the royal assent. Brazier has suggested that a referendum might be in order to gain authority from the voters.
Brazier has asserted that any Bill purporting to change or abolish the monarchy would require the assent of the Commonwealth States. This is provided for in the preamble to the Statute of Westminster 1931. Edwards, however, disagrees with Brazier, and asserts that the preamble is outdated, and a series of decisions since its enactment should render it to be impliedly repealed.

A Possible Alternative?

Although the Labour Government is committed to abolishing the monarchy, it may well be worth considering a third option, suggested by Professor Brazier. Due to the enormity of the task which would face a Government in abolishing the monarchy, it has been suggested that an ‘elective monarchy’, in which periodic referendums would be held on the popularity of the monarch could be a viable alternative. Although referendums would undoubtedly bring problems of their own, such as the issue of timing, they would have the advantage of legitimizing the monarch, as well as ensuring that popular opinion played a role.

Conclusion

Such a radical change as the abolition of the monarchy goes wholly against the traditional British way of constitutional evolution over time. As Brazier has commented: ‘…a change to a British republic would require the resolution of many interrelated issues’. This, coupled with the fact that public opinion is liable to change, makes Brazier’s suggestion of regular referendums on the popularity of the monarchy seem like an attractive option. However, if Britain were to become a republic, a non-executive president would undoubtedly be the model we would choose. This would allow for minimal disruption to the constitution, and we would avoid the problems associated with too high a concentration of power in a single office.

Bibliography
Articles
1. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, pp. 351-385 2. R. Brazier, ‘The Constitutional Position of the Prince of Wales’ P.L. 1995 3. R. Edwards. ‘Republican Britain – The Constitutional Implications’, 31 Cambrian L. Rev. 1 2000 4. R. Brazier, ‘Legislating About the Monarchy’, Cambridge Law Journal, 66(1) March 2007

Books 1. V. Bogdanor, The Monarchy and the Constitution (Oxford University Press, 1995) Oxford 2. R. Brazier Constitutional Reform, 3rd ed. (Oxford University Press, 2008) Oxford 3. M. Thatcher, The Downing Street Years (Harper Collins, 1993), London

Legislation
Act of Supremacy 1559
Statute of Westminster 1931

Official Publications
‘The Process of Constitutional Change’, Select Committee on the Constitution, 15th Report [Session 2010-12] HL Paper 177
‘Rules of Royal Succession’, Political and Constitutional Reform Committee, 11th Report [Session 2010-12], HC 1615
The Cabinet Manual, Cabinet Office, 2011

Websites http://www.cabinetoffice.gov.uk/ http://www.parliament.uk/

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[ 1 ]. R. Edwards. ‘Republican Britain – The Constitutional Implications’, 31 Cambrian L. Rev. 1 2000, p. 3
[ 2 ]. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, p. 364
[ 3 ]. R. Brazier, ‘The Constitutional Position of the Prince of Wales’ P.L. 1995, p. 410
[ 4 ]. Calvin’s Case (1608) 7 Co. Rep 10a
[ 5 ]. R. Brazier Constitutional Reform, 3rd ed. (Oxford University Press, 2008) Oxford, p. 93
[ 6 ]. i.b.i.d. at p. 94
[ 7 ]. R. Brazier, ‘The Constitutional Position of the Prince of Wales’ P.L. 1995, p. 401
[ 8 ]. R. Brazier, ‘Legislating About the Monarchy’, Cambridge Law Journal, 66(1) March 2007, p. 103
[ 9 ]. V. Bogdanor, The Monarchy and the Constitution (Oxford University Press, 1995) Oxford, p. 411
[ 10 ]. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, p. 351
[ 11 ]. V. Bogdanor, The Monarchy and the Constitution (Oxford University Press, 1995) Oxford, p. 410
[ 12 ]. i.b.i.d. at p. 410
[ 13 ]. i.b.i.d. at p. 411
[ 14 ]. i.b.i.d. at p. 412
[ 15 ]. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, p. 363
[ 16 ]. i.b.i.d. at p. 359
[ 17 ]. R. Brazier Constitutional Reform, 3rd ed. (Oxford University Press, 2008) Oxford, p. 94
[ 18 ]. The Cabinet Manual, Cabinet Office, 2011, Chapter 2
[ 19 ]. R. Brazier Constitutional Reform, 3rd ed. (Oxford University Press, 2008) Oxford, p. 100
[ 20 ]. The Cabinet Manual, Cabinet Office, 2011, Chapter 1
[ 21 ]. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, p. 383
[ 22 ]. R. Edwards. ‘Republican Britain – The Constitutional Implications’, 31 Cambrian L. Rev. 1 2000, p. 7
[ 23 ]. V. Bogdanor, The Monarchy and the Constitution (Oxford University Press, 1995) Oxford, p. 416
[ 24 ]. R. Brazier, ‘The Constitutional Position of the Prince of Wales’ P.L. 1995, p. 410
[ 25 ]. M. Thatcher, The Downing Street Years (Harper Collins, 1993), p. 18
[ 26 ]. R. Brazier Constitutional Reform, 3rd ed. (Oxford University Press, 2008) Oxford, p. 95
[ 27 ]. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, p. 382
[ 28 ]. Act of Supremacy 1559
[ 29 ]. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, p. 382
[ 30 ]. R. Brazier Constitutional Reform, 3rd ed. (Oxford University Press, 2008) Oxford, p. 96
[ 31 ]. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, p. 357
[ 32 ]. R. Brazier Constitutional Reform, 3rd ed. (Oxford University Press, 2008) Oxford, p. 96
[ 33 ]. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, p. 358
[ 34 ]. i.b.i.d. at p. 376
[ 35 ]. R. Edwards. ‘Republican Britain – The Constitutional Implications’, 31 Cambrian L. Rev. 1 2000, p. 9
[ 36 ]. i.b.i.d.
[ 37 ]. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, p. 357
[ 38 ]. i.b.i.d. pp. 380-381
[ 39 ]. Statute of Westminster 1931, preamble: “…any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.”
[ 40 ]. R. Edwards. ‘Republican Britain – The Constitutional Implications’, 31 Cambrian L. Rev. 1 2000, p. 9
[ 41 ]. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, p. 357
[ 42 ]. R. Brazier Constitutional Reform, 3rd ed. (Oxford University Press, 2008) Oxford, p. 96
[ 43 ]. i.b.i.d.
[ 44 ]. R. Brazier ‘A British Republic’, Cambridge Law Journal, 61(2), July 2002, p. 385