Chapter One-Constitutional monarchy
The UK is a constitutional monarchy. The Sovereign has a number of ceremonial and constitutional duties in relation to the Government. The Sovereign is the Head of State, the Head of the Armed Forces, the Supreme Governor of the Church of England and the fount of honour. The Sovereign appoints the Prime Minister and other ministers, and many of the Government’s powers derive from those of the Sovereign. The Government is thus ‘the Sovereign’s Government’ as well as commanding the confidence of the House of Commons.
This chapter covers: • ceremonial and constitutional duties • the Royal Prerogative • succession and coronation • absence and incapacity of the Sovereign • the Privy Council • the Established Church. The Sovereign
Ceremonial and constitutional duties
1.1 The Sovereign fulfils a number of ceremonial and constitutional duties relevant to the Government. The Sovereign appoints the Prime Minister and, on his or her advice, other ministers (see Chapter Three). The Sovereign opens each new session of Parliament,1 and brings the session to an end, proroguing Parliament if necessary by Order in Council.2
Under the Fixed-term Parliaments Act 2011, Parliament is dissolved automatically 17 working days before the fixed date for the election. 3 Where in accordance with the Act there is to be an early election, the Sovereign fixes the date of the election by Proclamation on the recommendation of the Prime Minister.4
The Sovereign in all cases fixes by Proclamation the date for the next meeting of Parliament. A bill which has completed all of its prior Parliamentary stages becomes law when Royal Assent (the formal approval of the Sovereign) is given.5
The Sovereign also appoints the First Minister of Scotland and the First Minister for Wales, and has a role in relation to the Devolved Administrations, as set out in legislation.6
1.2 The Sovereign is Head of the Armed Forces. Armed Forces recruits are required to swear an oath of allegiance to the Sovereign (or make a solemn affirmation to the same effect).7
All titles of honour (for example knighthoods) are conferred by the Sovereign, mostly on the advice of the government of the day, although there are some honours that the Sovereign confers at his or her own discretion. An example would be an Order of Merit. British honours are usually conferred by the Sovereign on the advice of the Cabinet Office, while the Foreign and Commonwealth Office (FCO) advises the Sovereign where honorary decorations and awards are granted to people from other countries.8
1.3 As Head of State, the Sovereign undertakes and hosts a number of state visits, helping to build relations with other nations. In addition to the UK, the Sovereign is Head of State of a number of other Commonwealth realms.9
Her Majesty the Queen is also Head of the Commonwealth,10 a voluntary association of 54 countries.
1.4 The Sovereign has a role in relation to the Channel Islands and the Isle of Man, which are not part of the UK but are self-governing Crown Dependencies.11 The Sovereign is ultimately responsible for the good government of the Crown Dependencies and the Lieutenant Governors are his or her personal representatives. Constitutionally, the UK is responsible for their defence and representation internationally. The Crown Dependencies make annual voluntary contributions towards the costs of their defence and international representation by the UK. The Privy Counsellor with responsibility for the Crown Dependencies is currently the Lord Chancellor. There 7 The Cabinet Manual are also 14 Overseas Territories12 for which the UK is responsible. They are not constitutionally part of the UK, but the Sovereign has responsibility for appointing a Governor or Commissioner to represent him or her in the Overseas Territory.
The Royal Prerogative
1.5 The scope of the Royal Prerogative power, which is the residual power inherent in the Sovereign, has evolved over time.13 Originally the Royal Prerogative would only have been exercised by the reigning Sovereign. However, ministers now exercise the bulk of the prerogative powers, either in their own right or through the advice that they provide to the Sovereign, which he or she is constitutionally bound to follow. The Sovereign is, however, entitled to be informed and consulted, and to advise, encourage and warn ministers. More detail on the exercise of the Royal Prerogative by ministers can be found in Chapter Three.
Succession and coronation
1.6 The succession to the Crown is automatic; on the death of the previous Sovereign the heir succeeds without any further ceremony and, as in the case of Edward VIII, can reign without ever being formally crowned.14 The coronation ceremony usually takes place some months later.
1.7 At the first Privy Council following accession, the Sovereign is required to take an oath to maintain and preserve the presbyterian Church of Scotland.15 Subsequently, at the first Parliament of the reign,16 the Sovereign is required to declare that they are a faithful Protestant and will secure the Protestant succession.17 (See paragraphs 1.20 and 1.21 on the Established Church.) Under the Coronation Oath, the Sovereign swears by oath to govern the people of the UK and the Commonwealth realms according to their agreed laws and customs; to cause law and justice, in mercy, to be executed in all judgements; to the utmost of his or her power maintain the laws of God, the true profession of the Gospel and in the United Kingdom the Protestant Reformed Religion established by law; and to preserve to the bishops and clergy of England and to the churches committed to their charge all the rights and privileges which the law accords.18
Absence and incapacity of the Sovereign
1.8 When the Sovereign is absent from the country for a short period or temporarily incapacitated or for some definite cause not available, his or her functions are delegated to Counsellors of State.19 These are currently the Sovereign’s spouse and the four nearest in line to the Throne. Two or more Counsellors of State may exercise any of the functions of the Sovereign except the powers to grant any rank, title or dignity of the peerage, or to signify Royal Assent to any amendment to the Act of Settlement 1700 or Royal Style and Titles.
1.9 When the Sovereign is incapacitated for a longer period, or is under the age of 18, a Regent may be appointed.20 With regard to incapacity of the Sovereign, a Regency can only be declared if three or more of the wife or husband of the Sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England and Wales, and the Master of the Rolls determine that it is necessary because of the bodily or mental infirmity of the Sovereign. A Regent must take the oaths of the Sovereign, except the Coronation Oath, and may exercise any of the powers of the Sovereign, except assent to any bill for changing the order of succession to the Crown as defined by the Act of Settlement 1700 or for repealing or altering the Act preserving the presbyterian system of Church government in Scotland.
The Privy Council
1.10 The Privy Council21 advises the Sovereign on the exercise of the prerogative powers and certain functions assigned to the Sovereign and the Council by Act of Parliament. The Privy Council is established under the Royal Prerogative and is the mechanism through which interdepartmental agreement is reached on those items of government business which, for historical or other reasons, fall to ministers as Privy Counsellors rather than as departmental 8 Chapter One ministers. For example, certain Statutory Instruments must take the form of Orders in Council.
1.11 Those appointed to the Privy Council mostly comprise ministers, other Parliamentarians and members of the judiciary. The appointment of Privy Counsellors is made by the Sovereign on the recommendation of the Prime Minister. Appointment to the Privy Council is for life and therefore the majority of Counsellors play no part in the Privy Council’s day-to-day business, which is largely conducted by ministers of the government of the day.
1.12 Exceptionally, non-Cabinet ministers attending Cabinet and senior members of opposition parties can be given briefings on confidential terms (‘Privy Council terms’). Such an arrangement is entirely voluntary, and anyone not wishing to be briefed on such terms may decline the invitation. Having accepted a briefing on Privy Counsellor terms, he or she is understood to have agreed to treat it as confidential.
1.13 The Lord President of the Council (fourth of the Great Officers of State)22 is responsible for presiding over meetings of the Privy Council, which are held by the Sovereign, and also forms part of the quorum on matters approved ‘by the Lords of the Privy Council’. The post is generally a Cabinet post and is often held by the Leader of either the House of Commons or the House of Lords. The post of Lord President is currently held by the Deputy Prime Minister. Committees of the Privy Council
1.14 Cabinet is the executive committee of the Privy Council. There are a number of standing committees of the Privy Council (for example the Judicial Committee, which among other things is the court of final appeal for the UK Overseas Territories and Crown Dependencies, and for some Commonwealth countries).
Privy Council meetings
1.15 Council meetings are occasions on which the Sovereign conveys formal approval to Orders in Council. The quorum is three, and summonses go only to government ministers and are issued on a rota basis. Once a minister has accepted a summons to a meeting of the Privy Council, this takes precedence over all other engagements.23
1.16 Decisions of the Council are recorded in Orders. Orders in Council, which are made by Her Majesty in Council, are a form of primary or secondary legislation.
• An Order in Council made under the Royal Prerogative is regarded as a form of primary legislation. Examples of this are Orders for the Prorogation of Parliament, approving or rejecting petitions or legislation of the Crown Dependencies and Orders dealing with certain matters concerning the Overseas Territories. • An Order in Council made under a power conferred by legislation will usually be subject to a Parliamentary procedure. Examples of this are Orders giving effect to United Nations (UN) Measures or sanctions, and transfer of functions orders under the Ministers of the Crown Act 1975.
1.17 Orders of Council are Orders that do not require personal approval by the Sovereign, but which can be made by ‘the Lords of the Privy Council’ (that is, ministers). Again, these can be statutory or made under the Royal Prerogative. Whether statutory Orders are also Statutory Instruments depends on the wording of the particular Act under which they are made. • Examples of statutory Orders of Council include approval of regulations made by the General Medical Council and other regulatory bodies. • Examples of prerogative Orders of Council include approval of amendments to the by-laws of Chartered bodies (institutions such as the Royal Institution of Chartered Surveyors and the Royal British Legion).
1.18 Her Majesty in Council also gives approval to statutory Proclamations for new coinage and for certain bank holidays. Prerogative Proclamations for proroguing Parliament and setting the date of the meeting of a new Parliament are approved in Council, as are Proclamations under the Fixed-term Parliaments Act 2011 setting the date for an election which has been varied in accordance with the terms of that Act. 9 The Cabinet Manual Committees of Privy Counsellors.
1.19 In addition to the permanent standing committees of the Privy Council, committees of Privy Counsellors are occasionally formed on an ad hoc basis to undertake a particular task, and are then dissolved. These are wholly independent of the Privy Council Office and do not report to the Lord President. The Chair, membership and terms of reference of each committee are determined by ministers and vary according to the issue which the committee is considering. Examples include the Committees chaired by Lord Newton of Braintree24 and by Lord Butler of Brockwell.25 The Established Church
1.20 The Sovereign is the Supreme Governor of the Church of England and must, under the provisions of the Act of Settlement 1700, join in communion with it.26 The Church’s legislation27 forms part of the public law of England. The responsibility for initiating Church legislation rests with the Church’s General Synod. Once approved by the General Synod, a draft measure requires approval by both Houses of Parliament and Royal Assent before becoming law. The Archbishops of Canterbury and York, the Bishops of London, Winchester and Durham and 21 further bishops are entitled ex officio to sit in the House of Lords.28
1.21 The Church was disestablished in the whole of Ireland in 1871 and in Wales in 1920.29 The Church of Scotland, which has a Presbyterian system of church government, is the national church in Scotland. The Church of Scotland Act 1921 guaranteed its spiritual independence.
Chapter One Notes
1 Jack M (ed.) (2011) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th edition. London: LexisNexis Butterworths, pp. 158–161.
2 Ibid., pp. 144–145.
3 Fixed-term Parliaments Act 2011, s.3(1). 4 Ibid., s.2(7). 5 Jack (ed.) Erskine May, pp. 642–645. 6 See the Scotland Act 1998 and the Government of Wales Act 2006 for more information. Throughout this manual, reference is made to the ‘Scottish Government’ and the ‘Welsh Government’ although their statutory titles are ‘Scottish Executive’ and ‘Welsh Assembly Government’ (the Scotland Act 1998 and the Government of Wales Act 2006). These two organisations have made clear their preference to be known by these titles. The Government is legislating in the Scotland Bill to change the statutory title for the Scottish Executive to the Scottish Government. It is examining whether a suitable legislative vehicle can be found to change the statutory title for the Welsh Assembly Government to the Welsh Government.
7 Ministry of Defence (2011) Manual of Service Law, Chapter 18, paragraph 8.
8 For more information see: Directgov, ‘The honours process explained’: [http://www.direct.gov.uk/en/Governmentcitizensandrights/ UKgovernment/Honoursawardsandmedals/ DG_067909].
9 They are Antigua and Barbuda, Australia, the Bahamas, Barbados, Belize, Canada, Grenada, Jamaica, New Zealand, Papua New Guinea, the Solomon Islands, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines, and Tuvalu. 10 The Commonwealth (1949) London Declaration.
11 Ministry of Justice (2011) Background Briefing on the Crown Dependencies: Jersey, Guernsey and the Isle of Man. 12 They are Anguilla, Bermuda, British Antarctic Territory, the British Indian Ocean Territory, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, the Pitcairn Group of Islands, St Helena, Ascension Island and Tristan da Cunha, South Georgia and the South Sandwich Islands, the Sovereign Base Areas of Akrotiri and Dhekelia on Cyprus, and Turks and Caicos Islands. 13 For more information on the Royal Prerogative, see: House of Commons Library (2009) The Royal Prerogative, Standard Note SN/PC/03861.
14 Act of Settlement 1700. 15 Act of Union 1707. 16 The modern practice is to take the oath at the first State Opening of Parliament of the new reign. Her Majesty the Queen took the oath on 4 November 1952. 17 Accession Declaration Act 1910. 18 The exact form of the Coronation Oath may vary but it is based on the Coronation Oath Act 1689. For more information, see: House of Commons Library (2008) The Coronation Oath, Standard Note SN/PC/00435. 19 Regency Acts 1937, 1943, 1953. 20 Regency Act 1937. 21 For more information, see: [http://www.privycouncil.independent.gov.uk]. 22 The Great Officers of State for England and Wales comprise: Lord High Steward, Lord High Chancellor, Lord High Treasurer, Lord President of the Council, Lord Privy Seal, Lord Great Chamberlain, Lord High Constable, Earl Marshal and Lord High Admiral. 23 Cabinet Office (2010) Ministerial Code, paragraph 2.5. 24 See: Privy Counsellor Review Committee (2003) Antiterrorism, Crime and Security Act 2001 Review: Report (HC381). London: The Stationery Office.
25 See: Report of a Committee of Privy Counsellors (2004) Review of Intelligence on Weapons of Mass Destruction (HC898). London: The Stationery Office. 26 Act of Settlement 1700, s.3. 27 For more information on Church of England measures, see: House of Commons Information Office (2010) Church of England Measures, Factsheet L10 and the Church of England Assembly (Powers) Act 1919. 28 Bishoprics Act 1878, s.5.
29 The Irish Church Act 1869 came into force in 1871. There were two Acts disestablishing the Church in Wales: the Welsh Church Act 1914 and the Welsh Church (Temporalities) Act 1919, both of which came into force in 1920.
