Jurist Edward Coke interpreted Magna Carta to apply not only to the protection of nobles but to all subjects of the crown equally. (Photo credit: Wikipedia)
In a recent Spectator article, Daniel Hannan explained that the Queen obeyed the rule of law.
“..I’m closely involved with the project—will be unveiling a large bronze statue of the Queen, symbolizing both 800 years of the Crown’s acceptance of the rule of law….”[1]
Except that is wishful thinking. At best, it is a pious fraud. The Queen is not subject to the rule of law.[2] The MPs, the Police, the Judges, and the Army take oaths to her and not to law or to Parliament. The settlement of 1688 was devil’s bargain in which the people’s representatives sold the people into bondage so they could enjoy the Crown’s privileges. Unlike Mr. Hannan, I do not find the 1688 a Glorious Revolution in the way he does.[3] Parliament became part of the Crown, allowed the arbitrary royal prerogative power to remain, and perpetuated the Crown’s arbitrary power.[4] Far from a constraint, the 1688 Bill of Rights simply expressed the Crown’s powers against the people and the promise it, and Magna Carta made, remain unfulfilled.
The Queen rules the law; the law does not rule the Queen The law does not rule the Queen. She rules herself. The Royal Prerogative remains unscathed. It has been diminished over the past 327 years, but it remains testament to the fact that the Crown is not subject to the rule of law.[5] The Queen takes no oath to obey the law nor does she take an oath to a constitution.[6]
The legal prerogative, including the principle that the Crown (or the state) can do no wrong, and that the Crown is not bound by statute save by express words or necessary implication;[7]
Rule of law does not exist if it is not complete. No one and no thing can be above or beyond the law. If it is, then the rule of law is limited. We see this clearly in the fact that only laws that specifically apply to her are enforceable. All other laws she only obeys voluntarily. She is not required to obey them in the way you or I are required.
It is Her Majesty’s Government that Make Her Majesty’s laws. What this means is that a Police Constable cannot arrest her although she voluntarily obeys the law to avoid the constitutional issues that could arise from such an attempt. Thus, we are not equal before the law. A Police Constable can arrest anyone in the UK except the Queen. The rule of law means that no one is above the law. However, it is clear by definition and by fact that the Queen is exempt from most laws. The rule of law only exists for those who are not her equal. Thus, the myth that the Crown is subject to the rule of law confuses the issue. The Queen, the Anglican Church, and Parliament, which was coopted into the Crown in 1688, are the Crown. To say that the Crown follows the rule of law elides the vital point that the Queen, the source of the laws, is not subject to the law.
Prerogative powers are arbitrary and beyond the rule of law. We can see this demonstrated in the way Government relies upon prerogative powers drawn from the Royal prerogative. These are not subject to the rule of law. The Royal Prerogative is beyond the rule of law. You will have the rule of law when the Royal Prerogative is extinguished and the Crown is subject to the will of the law. Until that day, the arbitrary power of the Crown remains.[8] It would be called a tyranny except to the extent that it rules in accordance with the law.[9] It is not an institution created by or for the people. The law, until the Crown disappears, will be an instrument of the Crown used for its purposes and only indirectly for the people or the public good. Until then, you are subject to Her Majesty’s Government and Her Majesty’s Laws. She rules you. Neither the law nor Parliament rule.
Perhaps it is time to dispel Magna Carta myths and not perpetuate them especially by those who should know better.
[1] http://www.spectator.co.uk/features/9535112/gove-vs-the-european-court-of-human-rights/ (accessed 24 May 2015)
[2]See for example “Given the historical development of the Sovereign as the ‘Fount of Justice’, civil and criminal proceedings cannot be taken against the Sovereign as a person under UK law. Acts of Parliament do not apply to The Queen in her personal capacity unless they are expressly stated to do so.” https://www.royal.gov.uk/MonarchUK/Queenandthelaw/HowUKandEUlawaffectTheQueen.aspx (accessed 24 May 2015)
[3] I find it a glorious revolution only to the extent it inspire the American Revolution which completed its promise and threw off the Crown’s arbitrary power and instituted the rule of law with a written constitution. In the United States, the people are sovereign. No one is above the Constitution and all take an oath to serve it and uphold it. By contrast, the UK officials take oaths to the Queen not to Parliament or the Law.
[4] http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/23603.htm (accessed 24 May 2015)
[5] Even the argument that the exercise of prerogative has to be reasonable and in accordance with the common law belies the existence of prerogative power. Prerogative power is not rule by law. It is rule beyond the law and until that gap is closed, the UK cannot claim that it follows the rule of law. http://www.innertemple.org.uk/downloads/members/lectures_2014/lecture_sedley.pdf (accessed 24 May 2015) Unless one wants to claim that the Royal Prerogative makes the law, in which case we return to the question of what is the law, which in turn raises the question of those laws not created by Royal Prerogative.
[6] The relevant passage from her Coronation Oath is
“Madam, is your Majesty willing to take the Oath?
And the Queen answering, I am willing.
The Archbishop shall minister these questions; and The Queen, having a book in her hands, shall answer each question severally as follows:
Archbishop. Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan, and Ceylon, and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs?
Queen. I solemnly promise so to do.
Archbishop. Will you to your power cause Law and Justice, in Mercy, to be executed in all your judgements?
Queen. I will.”
One notes that she does take an oath to obey the law. http://www.royal.gov.uk/ImagesandBroadcasts/Historic%20speeches%20and%20broadcasts/CoronationOath2June1953.aspx (accessed 24 May 2015) This page no longer exists. You can see it on the Way Back Engine here: https://web.archive.org/web/20150416194014/https://www.royal.gov.uk/MonarchUK/Queenandthelaw/HowUKandEUlawaffectTheQueen.aspx
[7] See the selection committee on Constitution 15th Report Waging War: Parliament’s role and responsibility http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/23603.htm (accessed 25 May 2015)
[8] As Lord Bingham of Cornhill expressed it so eloquently in R (On The Application of Bancoult) V Secretary of State For Foreign and Commonwealth Affairs. “The royal prerogative, according to Dicey’s famous definition (An Introduction to the Study of the Law of the Constitution (8th ed, 1915, p 420)), is “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”. It is for the courts to inquire into whether a particular prerogative power exists or not, and, if it does exist, into its extent: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 398E. Over the centuries the scope of the royal prerogative has been steadily eroded, and it cannot today be enlarged (British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32, 79E). http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/banc-3.htm (Accessed 24 May 2015)
[9] As Leo Strauss argues in On Tyranny, “kingship is rule “in accordance with the laws of the cities” (p.68). However, this does not mean that ruling according to the laws is not tyrannical. Instead, we see that the Crown has been at pains to placate the populace, keep them willing subjects, and to rule in accord with the laws even though the people cannot make the laws. They live with the appearance that the Crown makes and rules according to the country’s laws. However, the deeper issue is the validity or legitimacy of the regime. Can the Crown claim to be legitimate when it is not based on consent, not even the 1688 Act can be considered to express the consent of a constitution. In other words, a regime without consent is a tyranny and the UK regime lacks consent, even though the people may be satisfied with the appearance that the regime rules in accordance with the laws. As Xenophon’s Memorabilia 4.4.13 explains citizens who covenant with each other create the law of the community. The UK regime is not based on such a covenant and lacks the legitimacy it provides. Therein we see the continuing and ongoing struggle between the UK regime and the spirit of 1789.
Philosophical Politics 