Constitutional Monarchy in the UK - Essay Example

?Discuss the Constitutional Monarchy in the UK Taking Into Account: Monarch Role, Royal Prerogative, Royal Immunity, Rule of Law and Separation of Powers Table of Contents Brief Discretion of the United Kingdom Constitutional Monarchy 3 Monarch Role 5 The Role of Monarchy Today 6 Royal Prerogatives Power 8 Historical Powers 9 Royal Prerogative 10 History 11 Current Status 13 Royal Immunity 14 Rule of Law 15 To Stop Crime 17 Establishing A Legal Boundary 17 Functional Content 18 Separation of Powers 18 References 21 Brief Discretion of the United Kingdom Constitutional Monarchy Constitutional monarchy is considered to be a form of administration in which a King or a Queen acts as the head of the state, country or a group of nation. The actions taken within the running period is usually guided delineated by the rules stated in the constitution, whether it is an inscribed, uncodified or combined constitution. This form of control is viewed to be different from that of an absolute monarchy in which a monarchy serves as the source of power in the state or the region bounded by any constitution and has the power to regulate their individual respective government policy. It is worth mentioning that constitutional monarchy is also described as restricted monarchies, governmental monarchies or crowned republics. The title given to the head/monarch is generally the king or the queen. The monarchy of United Kingdom (UK) also known as British Monarchy is the statutory monarchy of the UK and its foreign terrains. The current monarch of the United Kingdom is Queen Elizabeth II from 6 February, 1952. As the monarchy is constitutional, the monarch is constitutional and the power of the Queen is restricted to impartial functions such as bestowing honours to individuals and appointing the prime minister of the states under the monarchy. The existence of the British monarchy can be traced back from the time of Kings of the Angles and the time of Scottish King. By the year 1000, it was viewed that England and the Scottish nation had developed into one of the major powers globally. It has been stated by many historians that the last Anglo-Saxon monarchy was till the year 1066 when the Norman invaded and the English monarchy passed to the Norman. However, it was observed that in the thirteenth century the principality of Wales was merged into England and the aspect of Magna Carta was imposed, seizing the power of the king to a great extent. It was till the year 1603, the king or the monarch’s power was restricted within a written document1. However, in the year 1603, when King James VI inherited the English throne as James I both kingdoms were governed by a solitary supreme. It was viewed that from the year 1649 to 1660, the custom of empire was fragmented by the pro-republic Commonwealth of England which resulted in The War of the Three Kingdoms, protesting the rule of the same monarch in the three kingdoms. This resulted in the formation of the Act of Settlement 1701 which is still in force excluding Roman Catholics or those who wed with Catholics from succession of the English throne. In the year 1707, the Kingdom of England and Kingdom of Ireland were merged together to create the United Kingdom of the Great Britain and Ireland and the British Empire became the nominal head of the great extension in 1921. In this regard, it have been viewed that in the 1920’s five-sixth of Ireland seceded from the Union as the Irish Free State, and the Balfour Declaration recognised the evolution of the dominos of the empire into separate self-governing nations within a commonwealth of countries. It was only after the Second World War that happened during 1939-1945, the vast majority of the British associations and territories became independent bringing the empire to an end by then in different parts of the globe where the British still ruled. It was then that George VI and his inheritor Elizabeth II were given the title Head of Commonwealth as a symbol of the free relationship of its independent member nations. The United Kingdom and the fifteen other member states that consider the same crown as the monarch is known as the commonwealth monarchies. Although the monarch is considered to be the head of the member states however each nation is sovereign and the monarch or the head has different functions and has different titles for each of the member states. Considering the status of the commonwealth realm as of 1992, it is considered that the realm has sixteen members. However, Australia, Barbados, Jamaica, New Zealand and Canada are a few of the nations that consider the royal family of the United Kingdom as their royal family and the monarch plays a vital role and is considered the head in these nations2. Monarch Role Monarchy is determined to be amongst the first forms of administration in the United Kingdom. The British monarchy also known as the constitutional monarchy provides the capability to create and pass legislation, rests with a designated parliament in spite of being the Sovereign head of the states. Although the British Sovereign no longer exists and has no political or executive role, the monarch is till today is considered to play a vital role in the file of all the nations of the commonwealth realm. As the head of all the states, the monarch is responsible for commissioning the legitimate and depictive responsibilities which have developed over 1000 years of history. In addition to all the duties mentioned in the constitution, the monarch also has a less formal duty as the Head of the nation i.e. the United Kingdom. In this regard, the Sovereign Act as a focus for national identify in the UK, helps in identifying the wisdom of stability that exist with the states and the aspect of support that the nation has given voluntarily3. At present, the British sovereign is considered to be the head of the legitimate demesne which implies that all the nations under the monarchy accept the Queen as the head. This also signifies that Queen Elizabeth II (the Queen of the United Kingdom and other commonwealth members) remains the head of the state entailing the right to govern and take major constitutional decisions. It is also worth mentioning that Britain is a presidential country where the head of the state is considered to be a figurehead in the nation and the Parliament is provided with the right to take vital day-to-day decisions regarding inland and overseas policies and more specifically the government. The prime minister of the country is also provided the right to choose their ministers, create legislations and also to take vital decisions such as whether to enter into war or not in time of emergency. All these aspects are considered to be a vital part of the royal prerogative which has been acquired by the reigning monarchy over time in the past. However, it has been viewed that today a majority of the power that has been imitative from the standard are implemented not by the Queen but by the parliament4. The Role of Monarchy Today The British constitution is considered to be governed by a set of rules and certain laws that have been passed in the parliament. The well-known Magna Carta is also determined to be a part of the formation of the British monarchy containing some of the forming documents in it. These rules have been established over an extensive historical period evolving since the time of 1689, the year when William III and Queen Mary became the first joint monarchy of the United Kingdom. It highlights a few of the important principles that guide the right of the parliament and also limit the power of the ruler5. The principles are stated hereunder: The law must be free from any royal interference People can write request to the ruler The ruler cannot impose any tax on the civilians considering the royal right alone Election related to the member of the parliament must be done without any interference from the royal family In addition, it has been viewed that many rules have been developed overtime to limit the power of the monarch. A few of which are listed hereunder: The Queen or the monarch cannot enact or pass any law in the nation The monarch is only allowed to act or take actions on the advice of his or her majesty and is not allowed to enter the House of Commons in the parliament The monarch must always be neutral politically and must not support any governing party The monarch has no right to vote in any election conducted in the state6 In this context, it is worth mentioning that the British monarch never casts a vote. Although no theory or law binds the King or the Queen to cast their vote however casting a vote would be unconstitutional as the Sovereign is considered to be outside the political boundaries of the nation7. Considering the current role and power of the monarch, it can be best explained by splitting both in two parts the royal prerogative powers and the historical powers: Royal Prerogatives Power The actual prerogative powers of the monarchy are considered to be those powers that are usually implemented by the parliament on behalf of the monarchy. However, the Queen still holds the right to use it herself, as she acts as the Head of the States8. A few of the actual powers that the current monarch i.e. the Queen holds are stated hereunder: The Nomination and Discharge of the Ministers: The Member of Parliament who is also known as the Minsters of the Crown work for the Queen. In this regard, the Queen has the right to appoint or dismiss any ministers, if the situation demands without taking any prior permission from anyone9. Royal Assent to Bills: This right signifies that the Queen is responsible for allowing her consent for bills to convert principles. She can also decline certain approval. The Commissioning of Officers in The Armed Forces: The right to commission a bill is done through permission from the Queen. It is worth mentioning that when an officer is saluted, they are actually saluting the Queen’s commission not the officer. Appointment of Queen’s Counsel: The monarch of the United Kingdom i.e. the Queen still holds the right of creating orders in the council which can almost act like a mini law without permission from the parliament. Recognition of Foreign States: The Queen still has the power of recognising foreign states as is instituted in international law. In this context, it can be stated that if a state is documented, it can be called a country9. In addition, the king also governs the Church of England, chairing the meetings of the Privy Council, meeting the prime minister once a week to discuss cabinet business and to suggest on affairs of the states. These are a few of the powers that the monarch enjoys today being the head of the constitutional monarchy. Historical Powers Historical powers of the Queen include some of the powers that have been withdrawn today. The Queen or her predecessors have no right and cannot use those rights in the future: Dismiss Parliament: Before the year 2010, it is observed that the Queen had the power to dissolve the parliament. However, in the year 2011, the authority of liquefying the parliament at any point was withdrawn. Press Gang Man to Join the Navy: The monarch always had the power to force any man of the state to join the navy at any point of time till the 19th century. Today, the law has been avowed null and void and the queen has no right to enforce the law on any individuals residing in the state. With reference to the above discussion, it can be stated that these are a few of the powers along with roles and responsibilities that the Queen of the United Kingdom enjoys being the sole monarch of the constitutional monarchy10. Royal Prerogative The royal prerogative is an association of accustomed power, license and freedom acknowledged in communal law and occasionally in the civil law which controls processing a domain as belonging to the sovereign alone. It is a way of expressing that in-spite of parliament being the executive power of the government, the monarchy still holds certain rights that can be implemented if needed without prior permission from the parliament. The royal prerogative of the United Kingdom is an association of accustomed bodies, honour that has been recognised by the Sovereign. It is worth mentioning that many of the vital powers of the British government bestowed in a monarch have been logged under the obligation of the royal prerogative11. The term royal prerogative is the tenure provided to the set of formal powers of the crown in the UK considering the British policy12;13. It is considered that the royal prerogatives are the power of the Queen and are also a part of the common law within the state. Originally, the prerogative power could be applied by the current monarchy. However, today, it can be viewed that there exist a distinction amid the monarchy ruling on own capacity and the power possessed by the monarch as the head of the state. It can be observed that at present the government ministers or the members belonging to the parliament execute a majority of the powers either on their own right or through the advice they provide to the monarch or the Queen which she has to follow constitutionally14. There have been many calls to reform the current rules and regulations in order to accentuate the prerogative powers as most of them are applied without prior permission of the parliament which resulted in changing them in the year 2011. The prerogative today can be referred as one of the most interesting aspects of the unwritten constitution in the UK. Many historians have also stated that prerogative power is a power or is the outcome of status within the society. Decades ago the prerogative power was treated as a guideline to implement certain rules and regulations within the state. However, today, the royal prerogative is only concerned with certain areas critical to the government of the UK. This mainly includes the areas like conducting foreign affairs, defence and national security as they are considered to be the three most vital constituents for any nation15;16. History The royal prerogative was implemented as the powers that a monarch enjoys during his or her reign in the state. It is viewed that although the monarch was considered to be one of the most powerful constitution however the monarch felt great challenges from the growing feudal turbulence that was growing in the fourteen and the fifteenth centuries. During the start of the 16th century, it is determined that the issue was withdrawn and the monarch began to be largely independent. It was after the rise of the parliament, the issue grew to a great extent. While the monarch was the predominant partner in the English constitution, it is ascertained that the court stopped the monarch to declare him/her as more powerful than the parliament. This scenario emerged when Queen Mary II and King William III were declared the King and the Queen. The Bill of Rights 1689 was drafted which helped in establishing a prominent place in the parliament. However, it made it compulsory for the monarch to consult the parliament before nullifying a law and no money of the state can be used for the crown without prior permission from the parliament17. The bill also stated that the parliament has the right to restrict the use of the residual prerogative as per the Triennial Act 1694, which requires the monarch to dismiss and to call parliament at certain time when he or she deliberates that the actions taken by the parliament are against the interest or would affect the ruling aspect of the monarchy. The Bill of Rights appended further defences related to individual rights. Consequently, the King had been prohibited to form his own courts or to act in lieu of a judge himself. The courts also had been prohibited to enforce excessive bail or fines or scarce and harsh punishments18. An explanation of the prerogative power of the monarch considering various elements is depicted hereunder: Legislature: One of the most prior rights of the monarch was the power to liquidate the parliament and which was implemented individually by the monarch. This prerogative was viewed to be generally applied at the appeal of the Assembly and the prime minster of the state either through discretion from the queen or the majesty or following a motion of no confidence. It is worth mentioning that the parliament was unilaterally dissolved only once in the year 1835 by William IV as a strategy of forcing out Earl Grey out of the cabinet who was the ex-prime minister of the state during that period. However, the royal prerogative to dissolute the parliament was ceased by implementing the Fixed-term Parliaments Act 2011. The Section 6(1) of the Act specifies that the monarch power to dissolute the parliament is not affected by the Act, and no monarch would have the right to dissolute the parliament through his/her own wish. Additionally, it has also been stated that the monarch is considered to be a vital part of the parliament and the ministers of the parliament are the ministers of the Crown19. Current Status Although the monarchy enjoys an important role in the constitution however the monarch enjoys a very limited power as the prerogative power as has been assigned to the prime minister and further governing persons of the nation. A few of the royal prerogatives that the Queen enjoys today in the 21st century are stated hereunder: 1. The Queen of the UK has the right to assign or sack any prime minister from the parliament. However, after the implementation of the Fixed-term Parliaments Act in the year 2011, the queen has the power to choose the head of the minority party to lead the commons in the parliament. In this regard, if a minister opposes to lead the commons, the monarch can exercise powers of nomination and discharge. 2. The Queen has the authority to assign ministers, aristocrat, administrators and senior domestic employees within the state. Contextually, through profound evaluation, it can be stated that in reality the prime minister of the nation selects the personnel for the desired positions in the different government bodies. The Queen only provides order of the Garter and the order of the Merit. Thus, it can be stated that a majority of the powers with regard to the appointment of senior personnel are with the prime minister. 3. According, to the royal prerogative, it can be stated that the monarch has the authority to grant absolutions and provide some sentence in lieu of other. However, it has been viewed that the power is exercised by the home minister and the Queen has the authority to declare the final verdict. 4. Decades ago, it is observed that the monarch had the power to announce war against any nation that can be a threat for the state. However, today the assertion of war and validation of any important agreement is conducted by the prime minister of the nation acting as a representative for the monarch. Correspondingly, the 2003 declaration of war against Iraq was taken by the prime minister and not by the Queen20. Consequently, it can be stated that the monarch is determined to be above law and has Crown immunity. The legal immunity conferred by the royal prerogative can be expanded to institution along with servants of the monarch. Royal Immunity Royal immunity or Crown immunity is measured to be a legal doctrine by which the sovereign or the state cannot charge an act of legal wrong upon the monarch and is immune from civil suit or criminal prosecution. It is a part of the common law. It is observed to be a vital law within the state or the sovereign as the monarch is the main legal figure of the state. This principle is also applied to Australia, Britain and the six states of the commonwealth realm and each has an authorised person who acts as the monarch. It is worth mentioning that the past personal immunity of the crown is now applied by the government on behalf of the Queen and that the Queen is considered as the national legal personality. Historically, it has been viewed that the Crown had never been able to be prosecuted against criminal or civil cases and the only means through which the monarchy would be preceded would be through a petition of right, which was completely dependent on the permission of the royal fiat by suits against the Attorney General and by actions against the ministers or the government of the parliament. However, in the year 1947, the Crown Proceeding Act was majorly altered which made the monarchy liable with regard to right in proceedings which was earlier only possible through virtue of a grant of a fiat. Illegitimate actions against the UK government are still restricted unless permitted by the Crown Proceeding Act. This is owing to the fact that the Act only exaggerated the regulations in admiration of the Act conceded by the UK government and the empire still residues individually protected from any illegal and political conducts. Considering this the Queen is resistant from detention in all scenarios and all the associates of the royal family are also invulnerable from custody in any civil dispensation. Furthermore, no arrest can be made in any royal palace or premises and no legal process can be implemented within that residence. The current status of the Crown immunity can be separated into two main facets21. Firstly, the Crown has more immunity from action in offense, agreement and legal review. Secondly, there is a common law principle that a statute is presumed not to relate to the grown. As a judicial person, the monarchy is potentially liable for any wrong that it does, this basically includes tort or breach of contract. In the United Kingdom, the law is extended to the state as it is considered to be the legal personality of the crown. This principle is now applied in Australia as well as Great Britain as a part of the commonwealth. The remaining six states have their own legal personalities who represent themselves on behalf of the monarchy22. Rule of Law The rule of law also referred as nomocracy signifies the influence of the authority and law within the civilians especially through the behaviour of the government bodies. The rule of law is widely considered as a guideline of the governance of the United Kingdom. Although it is considered to be a vital aspect within the United Kingdom however the rule is applied to only specific situations. The rule of law was created through various ideas. Amid them the two vital aspects were the factor of law and order in contrast to the factor of anarchy and the running of government in the most appropriate way as well as the right of the states as compared to the individuals residing within the state. The rule has been considered as a vital part of the constitution since it was first emphasized by Sir A V Dicey23. It essentially involves certain act such as; The right of the individual residing in the state is mainly determined on the basis of the legal rules as written in the constitution rather than on his/her behaviour of authorities towards the government. Every individual who is a part of society in spite of their social status or their contribution to the society is subjected to the law. The vital feature of the law is that the liberty of the civilians is directly based on the rule of law. Its success is directly dependent on the role of the trial by the jury and the unbiased judgment by the judges. It is also directly relied on three prerogative orders which are the Official Secrets Act, the effort to seize a person’s right to trial by the jury and the activities of the secret service24. It is furthermore observed that the rule of law is significantly affected by constitutional monarchy. The constitution belonging to a modern democracy is determined to be largely governed by the aspect of rule of law. It is acknowledged that the Home Secretary within the UK governmental authority cannot disregard rule of law. Moreover, no monarch can depend on the divine authority in order to supersede the law. Parliament is recognised to possess independence along with decisive authority to take sovereign decisions. It is also affirmed that monarchy headed by the Queen is required to be careful to ascertain that her activities are executed in stern accord with the law. This signifies that under the rule of law each citizen including monarchy is subjected to the law which includes the Queen as well25. The various reasons behind the implementation of the rule of law as a part of the constitution are stated hereunder: To Stop Crime The first vital reason behind the implementation of the rule of law as a part of the constitution was to maintain law and order in the state. It was an essential measure as the rate of crime was increasing at an alarming rate. The notion of the rule was to maintain law and order by any means so that the monarchy would be able to control any violence in the state without being involved in it constantly. It has been a topic of discussion amid many scholars whether the rule of law would allow making the constitution function normally and whether the rule of law would truly be functional without a democratic form of government as it best suited in that scenario. It is also worth mentioning that since freedom of expression is considered to be the set of actions that would help in decreasing the crime rate to a great extent, the rule was also implemented thereon25. Establishing A Legal Boundary It has been viewed that public empowers must perform tasks in accordance with the law assigned to them in order to make the entire system more functional and effective. The second reason behind the establishment of the rule of law was to restrict the function of the authorities within a specific boundary. It is worth mentioning that since most of the constitution laws are not written, several questions have been raised earlier relating to the validation of the rule. Therefore, the power to charge any individual for the violation of the rule cannot be done without taking powers to act in lieu of the government from the parliament. Additionally, in the UK, the command to issue such power can be obtained from ordinary court trials26. Functional Content Any functional content of the rule of law when applied to the constitution of the UK highlights certain questions on how the government should implement steps that would facilitate government bodies to follow what is under the rule of law. However, many changes have been made to the rule of law since then to meet the requirements of the civilians and there prevails a coordinated relation amid the government, monarch and the people27. Separation of Powers The separation of power is considered to be amongst the most vital parts of the constitution in both the UK and the United States of America (USA). It is viewed that the concept of separation of power was a fundamental part of the American political system, however today it can be vastly seen being implemented in the UK’s government system. It has also been stated by many scholars that the concept of separation of power that is being followed in the UK is more uncodified and therefore roles have merged amid the monarchy and the government. The government in both the nations function through three main bodies which include the legislature that makes laws, the executives that are provided the right to put the law sanctioned into effects and the judiciary or the law body that provides final verdicts on cases that arise out of the law. In America, it has been viewed that the three bodies that are assigned with their respective duties are present and perform their duties accordingly. Considering the aspect of the commonwealth realm, the idea of the separation of power seems not so clear. It has been viewed that the legislative aspect of the states is viewed by the parliament where laws are passed, the executive is the cabinet of the government where the laws are formulated. It is worth mentioning that the European Council is excluded from the process. Today, separation of power is considered to be an aspect through which a majority of the institutions in the state are provided the authority to function independently and no individual has the authority to span these offices. The main governing bodies are usually taken to be the executive, the legislature and the judiciary. In the past, the aspect of separation of power was measured to be an aspect to guard against tyranny and to preserve liberty. It was believed that a majority of the institutions must be divided and that each must be interdependent so that the power of one cannot exceed that of the others. However, today the aspect of separation of power is more often suggested as a policy to check a system and implement policy to balance the vital aspect in order to build an effective government. In the UK, the aspect of separating the power enjoyed less importance in the past. However, today, the scenario seems to have changed to great extent wherein major offices and institutions have been provided with power to achieve a balance between the Crown and the Parliament. Additionally, a number of policy initiatives have also been taken by both the assembly and the monarchy to develop a more formal separation of power. For instance, during the rule of the previous government in the UK, it was viewed that the Constitution Reform Act 2005 was formed28. This has resulted in the creation of the independent Supreme Court along with disassembling of many legal bodies seizing some aspect of the fusion of power from the monarchy to the parliament and other bodies who are liable for effective functioning of the entire government. It is worth mentioning that a constitutional monarchy divided the legislature and the executive power amid two groups i.e. the traditional monarchy and the elected government body. The monarch or the Queen holds some power mostly through traditional and magnanimity of the general population as a part of the tradition that has been a part of the nation from the part of the establishment. The majority of the power is assigned to the government, legislature and the executive. However, the monarch still holds the right to overrule a few of the parliament bills and can set certain foreign policies as a part of the right received from the traditional monarchy29. References Australian Electoral Commission, ‘History of the Indigenous Vote’ (2006) ITB 1. Aleksandra Luczak, ‘British Legal System’ (n.d.) LT 1. (1) Crown, ‘Her Majesty the Queen’ [2013] (Head of State) < http://www.royal.gov.uk/HMTheQueen/HMTheQueen.aspx> accessed 31 December 2013. (2) Crown, ‘The Cabinet Manual’ (2011) CO 1. (3) Crown, ‘Fixed-term Parliaments Act 201’ (2011) C14 1. Christopher Enright, Federal Administrative Law. (Federation Press 2001). 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Rev, ‘The Royal Prerogative’ (n.d.) 5S 1890. Royal Central, ‘What are the Queen’s Actual Powers?’ [2013] (Royal Prerogatives Power) accessed 31 December 2013. Tom Bingham, The Rule of Law (Penguin UK 2011). Thomas Poole, ‘United Kingdom: The royal prerogative’ (2010) IJCL 146. Thomas Campbell, Separation of Powers in Practice (Stanford University Press 2004). Universitat de Vic, ‘The British Monarchy, a long-standing institution facing modern times’ (n.d.) I 1. Vince Flynn, Separation of Power (Pocket Star 2009). Read More