10 June 2019

There are areas where the Queen could choose to intervene in Brexit – and this shows how she, or a future monarch, could shape the course of events, argues Bronwen Maddox.

In the political crisis that Brexit has produced, and the tussle between government and Parliament, there are several points when the Queen might be called upon to make a decision that would determine the course of events. That would offend the principle of her political neutrality as head of state.

This is possible in theory under the UK’s constitutional conventions. It is also unlikely, given both the probable course of events in the House of Commons and the disposition of this monarch, who has been keen to observe the prescribed neutrality of her role (although supporters of Scottish independence disagreed during the 2014 referendum).

But there are two other areas – in the vulnerability of the union of the United Kingdom after Brexit, and the general state of the nation – where the Queen might be tempted to let her views be known.

What is more, these areas where there is a potential role for the Crown to intervene show that a future monarch might have considerable room to comment if he chose and could even shape the course of events.

  1. Choice of next Conservative leader

    The first area where the monarch could be asked to play a deciding role is in the choice of the next Tory party leader.

    This could arise if the person that Conservative party members choose cannot demonstrate support in the House of Commons for a key policy – such as leaving the EU without a deal. Perhaps the Commons might have passed another motion (even if not legally binding on the Government) in opposition to no deal. In theory, the monarch could say that she did not have confidence in Theresa May’s recommendation, as outgoing prime minister, that this person should replace her.

    Choosing the Prime Minister is a “reserve” prerogative power of the monarch, although he or she is supposed to stay out of the politics of the choice and be advised by the outgoing prime minister about who is able to command confidence. In turn, the advice from the outgoing prime minister is shaped by that from officials including the Cabinet Secretary.

    In practice, it is hard to conceive that the Queen would not accept the advice of her prime minister on the succession (although she is, of course, free to seek advice from other sources). 

  2. Proroguing Parliament

    In a stance that immediately provoked a storm of criticism, Dominic Raab, a contender for the leadership, said that he would be prepared to prorogue Parliament (bring its session to an end) if it attempted to oppose No Deal. The power to do that is a reserve power of the Queen, acting on the advice of the Prime Minister and Privy Council (the body of politicians who are advisers to the Sovereign). It would be enormously controversial to ask the Queen to support a strategy which – in the few days of its airing – has been attacked from many sides for proposing to shut Parliament out from one of the key decisions of the day.

  3. Vote of no confidence

    UK governments continue in power by virtue of being able to command the confidence of the House of Commons and get key legislation passed with support from their own party or others. If there were a vote of no confidence in the Government (for example, if a prime minister were attempting to pursue no deal), and the Government lost, under the Fixed Term Parliaments Act there is then a period of 14 days in which different groups in the Commons can try to form a government and pass a second motion expressing the confidence of the House.

    In theory, the Sovereign might be called upon to choose between two rival claims to form a government. If the incumbent prime minister failed to establish a claim but refused to resign, it is also in the Queen’s power to dismiss her or him, although this would be regarded as highly political, and has not been done since 1834. In practice, Parliament is a numbers game; it is likely to be obvious whether one group or another has enough support. If an existing prime minister refused to go – a strategy mooted by some in recent months – the plan might be to force a general election rather than to let others test whether they could command the confidence of the House.

  4. Integrity of the Union of the UK

    There are two other ways in which the Queen, as head of the nation, might be brought into the debate. These don’t have the same constitutional formality as the three scenarios above – but they are more likely to happen, not least because her own record suggests her willingness to make a rare comment in these domains.

    The first is if the union of the United Kingdom appeared to be likely to disintegrate for example by new proposals for a second referendum on Scotland’s independence, or by the prospect of a “border poll” on reunification of Northern Ireland with the Republic of Ireland. Both scenarios are hovering as potential consequences of Brexit, particularly if there were an exit without a deal. Scotland and Northern Ireland both voted strongly for Remain, and the unsolved treatment of the Irish border, particularly in the event of No Deal, could energise that question.

    The Queen is known to have serious concerns about the integrity of the United Kingdom. In September 2014, ahead of the independence referendum, she made a rare intervention in an informal response to one questioner urging voters to “think very carefully about the future”. However, this produced sharp criticism from Scottish nationalists, who argued that she should not frustrate (or try to influence) the democratic expression of people’s views.

  5. Overall state of the nation

    In the same way, the Queen might be prompted to make remarks about the general need for leadership that brings the country together. In January, in a speech at the Sandringham Women’s Institute, she made her most explicit comment on Brexit and the disarray in government, saying that “I for one prefer the tried and tested recipes, like speaking well of each other and respecting different points of view; coming together to seek out the common ground; and never losing sight of the bigger picture.”

The constitutional role of the monarch does make possible such events, even if at the moment the constitutional crisis represented by the first three scenarios seem unlikely. However, a future monarch might interpret these conventions as licence to comment more openly than the Queen has done. It cannot be ruled out that a future monarch would not challenge the advice from his prime minister of the day.

Comments

Parliament has already legislated in the EU (Withdrawal) Act 2018 that we leave the EU on the designated "Exit Day". Parliament has delayed that date twice through Statutory Instruments, but it would be unconstitutional to continue to do that indefinitely. For Parliament to change its mind and negate our Exit would require primary legislation including the Royal Assent. Such an attempt, in the face of a referendum result that produced the biggest vote for any body or any decision in UK history, would be a declaration of conflict between Parliament and the electorate. In my view a Prime Minister would be morally and probably legally justified in either:
a. Asking the Queen to prorogue Parliament to prevent it from taking such a decision, or
b. Not advising the Queen to give the Royal Assent to such a parliamentary resolution.
The Queen has a primary interest in upholding the sovereignty of her realm. She would be very willing to regain some previously lost sovereignty by doing nothing to impede withdrawal from the EU. She would feel morally justified to assist her subjects defy the attempt by an unrepresentative parliament to quash the referendum result.
Finally, the most likely justification for another Scottish independence referendum would be if a second EU (Withdrawal) referendum is held. In both referenda, all sides maintained they would be "once in a generation" events. To breach that principle and hold another EU one would negate the argument against a second Scottish independence referendum.

"If the incumbent prime minister failed to establish a claim but refused to resign, it is also in the Queen’s power to dismiss her or him, although this would be regarded as highly political, and has not been done since 1834"

More plausibly, the monarch might, under such circumstances, choose to make it known that the alternative to the PM's resignation would be an abdication.

Am I right in thinking that the mantra of ‘the monarch must not intervene in politics’ has evolved over the years and was not part of the 1688 Settlement in such a pure form. The 1688 architecture in effect provided for an interventionist political force above Parliament.
Perhaps it is time to go back to that architecture but with a President performing the role, not the Monarch (who would ‘of course’ carry on her / his duties of leading the country through political crises with occasional speeches at Sandringham WI)