The Royal Prerogative and Queen Elizabeth II
Was Her Majesty really responsible for the passing of bad laws?
It is often asserted, largely by our transatlantic friends in the United States of America, but also by not a small number of Catholics in Britain, that the late Queen Elizabeth II was to blame for the moral decline of Britain, as well as the loss of a great deal of Her Majesty’s other Realms and Territories.
After all, did she not approve every single law which came to pass? Could she not have simply vetoed them, since vetoing laws passed by Parliament was one of her few remaining rights and duties? The truth is not so simple. What follows is an explanation of the relevant parts of the British Constitution, what the Royal Prerogative is, and in what circumstances it can be exercised.
I. Sovereignty lies with the Crown-in-Parliament.
This is the overarching principle by which the British Constitution functions. Sovereignty lies with the Crown-in-Parliament, and not otherwise.
Since the Model Parliament in 1295, the Crown has always governed upon the advice of its ministers. King Edward I proclaimed at the time: quod omnes tangit ab omnibus approbari debet (what touches all should be approved by all). Ever since, representatives have been sent by commoners to the House of Commons, which, along with the House of Lords, advises the Crown.
The British Constitution is not written, and is therefore subject to a degree of flexibility. As such, the three components of Parliament — which, properly speaking, consists of the Crown and the two Houses — have seen their respective weight shift over time. The two Houses of Parliament were, in the beginning, primarily concerned with the levying of taxes, which could not happen without the common consent of the Kingdom (a principle of the Magna Carta).
During the Tudor period, for example, the Crown was at the height of its power, having declared itself an Imperial Crown and subjugated the Church in England under Royal Authority, thereby bringing the Church of England into schism. It is safe to say that this kind of absolutism in England was a disaster. Throughout the Stuart period, the Crown regularly ruled without the advice of its ministers, only calling Parliaments to raise taxes.
After the regicide of King Charles I and the Revolution of 1688, in which King James II was declared to have vacated the Throne by Parliament, the two Houses of Parliament grew in power. The Sovereign was then seen to be the Crown-in-Parliament, and not the Crown alone. Over time, the House of Commons grew to be the most powerful component of Parliament by far.
This brings us to today, where the Crown rules by and through the advice of its ministers, and not otherwise. When the King appoints a Prime Minister, he, by constitutional convention, appoints that Member of Parliament who can command a majority in Parliament. For if the Crown governs by advice, that advice must be unitary, and the Crown’s ministers must therefore necessarily speak with one voice. It is in this way that the concept of a ‘political party’ came into being in Britain.
In Britain, the state is ‘immortal … only responsible advice is changeable and inconstant’1.
To sum up, we might describe the constitutional set-up in Britain as: the exercise of the powers of the Crown upon the sole advice of whoever can command a majority in the House of Commons, as Enoch Powell described it.
II. The Royal Prerogative and its exercise.
A.V. Dicey, a prominent 19th century constitutional theorist, defined the Royal Prerogative as ‘the remaining portion of the Crown's original authority’2.
The existence of the Royal Prerogative is extremely important, and it is why, among other reasons, Britain has never had a dictatorship, and could never have such a thing without the total dissolution of the Monarchy. For to the Crown belongs the right and duty to call Parliament, and, in extremis, to dissolve it. Moreover, the Crown gives legitimacy to Parliament. Any pretended Parliament set up without being called the King is ipso facto illegitimate, which is a valuable protection against the kinds of civil wars and coups d’état seen on the African continent, for example. The Crown also retains the right to advise, encourage, and warn ministers in private, including in the King's weekly meetings with the Prime Minister.
But the exercise of the Royal Prerogative is also always undertaken by and with the advice of the Crown’s ministers. Parliament is dissolved upon the request of the Prime Minister, for example. When the Royal Prerogative was last used to ‘veto’ a law, in 1708, it was also exercised on the advice of the Crown’s ministers, as circumstances had changed after the passing of the relevant law by the Houses of Parliament such that its passing would be harmful (it was related to Scotland’s army and worries over rebellion in collaboration with France).
The King must therefore assent to any bill passed by the two Houses of Parliament, unless advised otherwise by his ministers in extremis, or except in the case of a constitutional crisis. This is a pillar of the British Constitution.
Although it is thus popularly imagined, and despite the Norman French formula, ‘Le Roy le veult’ (the King wills it), Royal Assent is not a ‘yes or no’ decision taken every time a law passes. Constitutionally speaking, it is simply a certification that the law has passed in both Houses of Parliament which the King is obliged to acknowledge, with the traditional exception being a law to abolish democracy.
Walter Bagehot, a renowned constitutional theorist, wrote:
The Queen has no such [legislative] veto. She must sign her own death-warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power. She has long ceased to have any.3
Let us put it more clearly, to sum up this section: the Crown does not possess, in itself, the power to exercise the Royal Prerogative, including the power to veto bills passed by the two Houses of Parliament, except when advised to do so by and with the advice of its ministers, or in a constitutional crisis.
III. Was Queen Elizabeth II responsible for all of the bad laws passed during her reign?
Before we start this section, we must first acknowledge St Thomas’ principle that lex iniusta non est lex (an unjust law is no law at all). God’s law comes above all things, and the evil laws passed by Parliament regarding abortion, same-sex marriage, and so on, cannot be considered as true human laws.
Now, on to the constitutional considerations in the United Kingdom.
During the Monarch’s coronation, they take an oath to uphold the laws, customs, and constitution of the Kingdom. In other words, they willingly swear to have no power over the future of the constitution, which is now shaped by Parliament alone4. Since the form of government in the United Kingdom — the matter of the oath — is itself neutral, it would be evil to break the oath.
It would be folly to pretend that the post-1688 (or post-1649, rather) constitutional arrangement in Britain is ideal, but it is not evil.
For the Queen to have broken her Coronation Oath, then, would have been illegal, seditious, and an evil, and one may not do evil that good may come of it (Romans III, 8). By claiming a right of veto that she herself did not possess, the Queen would have been acting illegally, and would have up-ended the constitution which she swore, under oath, to defend and uphold.
Let us emphasise clearly our conclusion, then: the Queen cannot be blamed for not exercising a power which did not belong to her. The Queen did not create the constitutional set-up that has existed for the past three centuries; she inherited it. As much as we would all wish that the Crown would rule, rather than reign, the Queen simply did not possess the power to veto laws like the 1967 Abortion Act.
Many might then wonder if the Queen might not have abdicated to avoid giving Royal Assent to the bill and to other laws of a similar nature.
The answer is that she would only have been obliged to do such a thing if there truly was a dilemma. For example, the King of Belgium was presented with a law legalising abortion in 1990. After refusing to assent to the bill, the King of Belgium was declared temporarily unable to reign by the Government upon his request, in which case the Belgian Government becomes the head of state, and the law was then able to pass.
No such mechanism exists in the British Constitution, and the Queen has no power of veto over laws passed by the two Houses of Parliament. There was, therefore, no dilemma at hand. Since the Queen was powerless to veto laws passed by Parliament, it would have been unnecessary and illogical to abdicate.
We can therefore conclude by saying that Queen Elizabeth II cannot be justly held responsible for those evil laws passed during her reign, as she was powerless to veto them, and one cannot be blamed for a bill that one is powerless to veto.
The responsibility for the laws passed in Britain can lie only with the politicians, who collect their salaries and love their titles, but who do not truly love our country.
God save the King.
The Rt Hon. Enoch Powell. Speech to the British Council in Lisbon. May 1990.
A.V. Dicey. Introduction to the Study of the Law of the Constitution (1885). 8th edition, published in 1915. Page 430.
Walter Bagehot. The English Constitution (1873). 2nd edition, page 75.
Ever since 1688, which enshrined the principle of the sovereignty of the Crown-in-Parliament. In 2011, for example, Parliament removed the Royal Prerogative of the Crown to dissolve Parliament by passing the Fixed-term Parliaments Act (2011), which was later repealed in 2022.