The Queen could be bemused

Former Prime Minister Cameron’s claim in interview (conducted following the recent publication of his book For the Record), that he had elicited a demonstration of royal support for a “no” vote in the September 2014 independence referendum, and Prime Minister Johnson’s request for the making by the Queen of the August 2019 Order in Council for the prorogation of Parliament, since adjudged by the UK Supreme Court to have been unlawful, have in their different ways led to reflection on various aspects of the Queen’s constitutional position, including the extent to which she is free, if at all, to follow her own judgment.

A blog by Professor Robert Hazell suggests that: “Buckingham Palace indicated its ‘displeasure’ at the first episode. On the second, the Palace has maintained a dignified silence; but it is said that when Boris Johnson phoned the Queen upon his early return from New York, he apologised for giving her unlawful advice.”

As to the prorogation, it has been suggested that the Queen and her advisers had been “resentful” over how the Government had handled the matter. It has been rumoured that the Queen reportedly asked aides for the first time in her reign, prior to the Supreme Court judgment, how and when she could dismiss a Prime Minister.

In turn one could well conceive that the Queen would have been bemused if the headline on the front page of the Sunday Times of 6 October 2019 came to her attention. This proclaimed that the Prime Minister, whose advice by convention she is regarded as obliged to follow (Cabinet Manual (2011), para 13, was to tell her “Sack me if you dare.”

The Queen may well have been perplexed likewise to learn of late that an issue had been raised before the Court of Session as to whether or not the Prime Minister, her principal adviser, would obey to the letter a law (the “Benn” law, which was intended to prevent a no-deal Brexit), to which she had only recently given her assent. On 21 October 2019 Lord Carloway, presiding in the Court of Session, ruled that the case, designed to secure compliance with this legislation, should be continued until it was clear that it had been “complied with in full”.

As a further sign of the complexity of the monarch’s role in interesting times, the UCL Constitution Unit publicised its October debate on “Prerogative versus Parliament: What can be Done?” in terms that: “Brexit has seen the Government not merely proroguing Parliament for five weeks, but also threats that the Queen might be advised to withhold Royal Assent from bills passed by Parliament, or even that the Privy Council might suspend Acts of Parliament which the Government doesn’t like.”

The question inevitably arises as to what the Queen’s position would be, were she to have concern on some future occasion that prime ministerial advice was suspect. With the “Benn Act” in mind, the Queen may well have weighed warily the opening words of the speech delivered by her on 14 October in which she pronounced: “My Government’s priority has always been to secure the United Kingdom’s departure from the European Union on 31 October.” In any event, as Hazell observed with reference to the then forthcoming speech from the throne: “If indeed the Government hopes for an election and for there to be no coming session of Parliament, then the Queen’s Speech is a sham. The Queen will not have been amused when the Supreme Court concluded that ‘when the Royal Commissioners walked into the House of Lords [to announce the prorogation] it was as if they walked in with a blank sheet of paper’.” He observed that the Queen would “be even less amused” to have to deliver a ‘Queen’s Speech’ in October “purporting to be a legislative programme, but in fact being a trailer for the Conservative party’s election manifesto”.

“Crowns are quite important things”

Wearing the Crown made Shakespeare’s Henry IV uneasy (Henry IV, Part 2, act 3, scene 1). The Queen has herself acknowledged that the Imperial Crown (which she has worn at many state openings of Parliament) is “unwieldy”. However, as she put it in a recent BBC documentary with characteristic understatement: “there are some disadvantages to crowns, but otherwise they're quite important things”. Although not worn on 14 October, the Imperial Crown was ceremonially displayed, just as is the more ancient Scots Crown when the Queen opens a new session of the Scottish Parliament at Holyrood.

 A further indication of the Queen’s view on crowns is to be found on the royal website: “The Union of the Crowns [1603] was followed by the Union of the Parliaments in 1707. Although a new Scottish Parliament now determines much of Scotland's legislation, the two Crowns remain united under a single Sovereign, the present Queen.”

 Bearing in mind the likelihood that at some future date a further independence referendum will be held in Scotland, the question arises as to what if any importance is to be attached to the Scots Crown. Considering the royal website, it is reasonable to suppose that the Queen’s view (whatever personal preference she might have as to the Union continuing) is that should the Union come to an end she would have the contingent right, and indeed the solemn duty, to assume the ancient Crown of the Kingdom of Scotland as well as that of England.

Advice to raise a royal eyebrow

 No constitutional convention required the Queen to follow Prime Minister Cameron’s request for “intervention” at the time of the independence referendum in 2014. Following the publication of For the Record, Cameron has made it clear in interviews (to Palace disapproval) that he had solicited a metaphorical “raising of the eyebrow” on the part of the Queen, which the Queen and her advisers had evidently regarded as acceptable to carry out. The Queen’s remark to some of those gathered outside Crathie Church on 14 March 2014 that she hoped that Scots would “think very carefully” about the vote was, it is claimed by Cameron, the outcome of his request (For the Record, p 553).

Interviewed following publication, Cameron observed: “The context for this... was at the time [First Minister] Alex Salmond was going around saying Her Majesty would be a proud monarch of an independent Scotland. This concerned me because, obviously, my side of the argument couldn’t say anything about that.”

The UK Government’s “side of the argument” was, notwithstanding Cameron’s comment, put comprehensively before the Scots electorate. Thus in For the Record he explained that since “Keeping the UK together was UK Government policy; it was right that the Government should set out the facts... So we published fifteen papers detailing exactly how Scotland was better off in the UK, from defence to data roaming. We sent a leaflet to every Scottish household called ‘What staying in the UK means for Scotland'” (p 550).

These Government endorsed “facts” were of course intended inter alia to instruct the Scots electorate that a “yes” vote would cause Scotland to lose its existing membership of the European Union, whereas such membership was safe only if Scotland remained in the UK. (See my Journal article related to this issue.)

However, as For the Record shows (p 550), the biggest issue of all for Cameron was “what about the pound in Scots' pockets? For months Salmond had insisted that an independent Scotland would keep sterling. But that wasn’t his decision to make. It was the UK Government’s… An independent Scotland could hardly expect taxpayers in a Union it had just voted to leave to back the use of their currency by a new country. ‘If Scotland walks away from the UK, it walks away from the pound,’ George declared in Edinburgh that February, playing our most controversial card yet”.

The “most controversial card” 

That the pound had a special significance for the Treasury can indeed be seen in the speech delivered by the Chancellor of the Exchequer, George Osborne, in Edinburgh on 13 February 2014. He stated that the currency would not be part of negotiations in the event of a “yes” vote in the referendum.

The importance of this appears from the oral evidence of Lord Wallace (in his then capacity as Advocate General of Scotland), to the House of Lords Constitution Committee pre-referendum.

It was Lord Lang who posed the question: “I am assume [sic] that part of the basis on which the Chancellor made his speech was the fact that the UK was the continuator state and would be in possession of the currency and he could already see that that would simply not be part of the negotiations. To what extent does that concept of continuator state endow the negotiating position more generally?” Wallace replied: “It is the crucial starting point. On your specific example, it allowed the Chancellor to make that statement. It is my view that the Bank of England as the central bank is an institution of the United Kingdom and would be the institution of the continuing United Kingdom” (Evidence volume, p 48, Q33).

Thus Cameron, and presumably Osborne, were both aware that a “controversial card” was being played. The controversy went further, since Sir Nicholas Macpherson’s advice on the matter, as Permanent Secretary to the Treasury, was published by him on 11 February 2014.

In a speech delivered by Macpherson on 19 January 2015, he commented: “The British state’s position was being impugned.”

Macpherson’s use of the term “British state” is open to question. Northern Ireland for example, although part of the UK, is not part of Great Britain, nor therefore of a “British state”. There is indeed a difficulty in any event in seeking to analyse either “Great Britain” or the UK as a “state”. Thus in Bradley, Ewing and Knight, Constitutional and Administrative Law (17th ed, 2015), it is commented (p 242): “The fact that central government is carried on in the name of the Crown has left its mark on the law, which has never developed a notion of ‘the state’… Instead, the ‘Crown’ developed as ‘a convenient symbol for the state’, although it is unclear whether the two terms can always be used as synonyms.”

The Permanent Secretary went on in his speech to comment that HM Treasury “is by its nature a unionist institution… It serves the whole of the United Kingdom”. It appears from this that the sage advice of the Royal Commission on Scottish Affairs (1952-54) was either overlooked or ignored by Macpherson. The advice given in that report was that when UK ministers were dealing with Scottish business (as of course the UK Treasury must if it is to serve the whole of the UK), “there should be full understanding and recognition by these ministers and by their officials that Scotland is a nation and voluntarily entered into union with England as a partner and not as a dependency”.

Again in 1993, during the premiership of John Major, and in accord with the Royal Commission report, the white paper Scotland in the Union: a partnership for good affirmed Scotland’s status as a sovereign nation. It was observed (para 10.3) that Scotland’s willingness to share its sovereignty “must never be taken for granted”. Major stated in his foreword: “no Nation could be held irrevocably in a Union against its will”. Scotland being a partner of England in the Union and free to leave should that be its will, it is hard to see any basis whatsoever for Macpherson’s statement as to the “British state” being “impugned”.

The concept of the continuator state

It is evident from the above that the Cameron/Osborne “controversial card” could only have been legitimately played if the “continuator state” theory were correct. The theory that the UK would have been the “continuator state” and Scotland a “new” state in the event of a “yes” vote having been recorded in the 2014 referendum had been developed by international law Professors Crawford and Boyle. Elsewhere in this Journal I have argued that the Crawford-Boyle “continuator” theory is wrong both in fact and law (“The Union and the Law” revisited). Their theory was however adopted in the first of the 15 papers Cameron refers to in For the Record. This was Scotland analysis: devolution and the implications of Scottish independence. It included Annex A, Opinion: Referendum on the Independence of Scotland – International Law Aspects.

It was Annex A which contained the opinion of Professors Crawford and Boyle. Although this was not in terms spelt out, their “rUK continuator” theory would have had as its consequence that the ancient Crown of Scotland was simply not available to be vested in the Queen as Queen of an independent Scotland. This was because, so the professors’ argument went, as far as international law at least was concerned, Scotland (and in logic therefore its Crown) had been absorbed at the Union in 1707 within the Kingdom of England. Their “alternative view” as they put it (alternative that is to the one hitherto commonly accepted as to the effect of the Union), was that Scotland ceased to exist in 1707, whereas England continued, albeit under the name of Great Britain or the United Kingdom. (See Annex A at paras 35, 37, 43, 95 and 114.) Without using the term as such, the authors seemingly have in mind the conception of a “greater England”. The Crawford-Boyle “alternative view” is that: “as a matter of international law England continued albeit under a new name and regardless of the position in domestic law” (para 35).

The hypothesis that Scotland became part of a “greater England” enabled Crawford and Boyle to consider Scotland, should it have become independent, as a piece of municipal territory breaking away from a “continuator” (a sort of “greater England” which had long since incorporated Wales, and was united with Northern Ireland) to form a “new state”.

Whatever Cameron found to be unacceptable in the suggestion that the Queen might become “a proud monarch of an independent Scotland” clearly fades into insignificance when compared with the potential effect of the UK Government’s adoption of the “rUK continuator” theory on the Queen’s contingent right to the Crown of Scotland. What neither Cameron nor Osborne, nor for that matter Macpherson appear to have considered were the implications which the “continuator state” theory had for the Crown and the Queen’s contingent right to the Crowns of England and of Scotland, which remain, until the Union ends, united under her.

Professor Boyle, the “continuator state” and the Crown

Professor Boyle, who provided written evidence dated 4 March 2014 as to the “continuator state” theory and the Crown to the House of Lords Constitution Committee inquiry above referred to, was clearly aware himself as to the implications for the Crown of the “continuator” theory of which he was co-author. As to the issue “What impact would independence have on the monarchy?”, he asserted: “It is not obvious that Scottish independence would have any specific impact on the monarchy as such. Her Majesty is already monarch of several states; adding one more changes nothing.” (See p 7, Q10 of the Evidence volume. My own written evidence is at pp 37-42.)

In my submission the only possible inference one can draw from Boyle’s remark is that the Scots Crown would be a “new” Crown for a “new state”. It would legally have had no link to Scotland’s ancient but, according to the “continuator” theory, long since absorbed Crown.

The position in a nutshell is that Cameron’s UK unionist Government had adopted a “greater England” unitary state concept which effectively contradicted the very existence of a Union with a Scotland, which, according to this theory, had been fully absorbed into England in 1707.

It may well be that the Queen neither has, nor had at the time of the referendum, any idea that there was a conflict as to the status of her Scots Crown as between the royal website standpoint and the UK Government-adopted “continuator” theory. Constitutional historian Lord Hennessy told BBC Radio 4's The World at One on 11 September 2014 that Westminster was insistent on not making any contingency plans for Scottish independence. He said: “I'd be very surprised if in any cupboard there was 'what do we do about HM Queen in the event of a Yes vote'.”

A Crown for the pound?

The “continuator” theory was thus crucial to the UK Government’s attempt to justify the claim that the pound belonged exclusively to the rUK. Had the Queen been consulted, would she have been prepared to barter the Scots Crown for the sake, inter alia, of rUK having sole use of the pound?

The argument is in my submission compelling that if the 1707 Union were to come to an end, and the Queen’s contingent right to the Crowns of England and Scotland become vested in her, the Crown of Scotland would have as much claim to the historically shared pound as the Crown of England. This follows from the fact, certainly under international law, that there are no “grades” of sovereignty and no reason why the Crown of England should have had any greater claim to the pound than the Crown of Scotland – or vice versa.

When in 1713 an attempt was made in the then new British Parliament to repeal the Union (the proposed bill was defeated by 71 votes to 67), there was evidently an understanding among legislators, familiar no doubt with legislation implementing the Treaty of Union, that the two Kingdoms could be restored to their previous separate existence. One would be hard pressed to point to any subsequent enactment, constitutional process or development of international law which might have changed this.

The Crawford-Boyle “continuator” theory, on which the UK Government relied so heavily before the 2014 referendum, seemingly pays little regard for the actual terms of the Union Treaty, article I of which (and the implementing Acts of the Parliaments of England and of Scotland) provided that “the two Kingdoms of Scotland and England shall… be united into one kingdom by the name of Great Britain”. Had the Treaty and implementing Acts been intended to achieve the incorporation of Scotland within a “greater England”, one would have needed the wording of article I to have established: “That the sovereignty of the Kingdom of Scotland shall be ceded to the Kingdom of England, and Scotland and its Crown cease to exist. England and its Crown shall however continue and be known as Great Britain or the United Kingdom of Great Britain.”

The Scots Crown – symbol of sovereignty or theatrical prop?

The Queen will no doubt be aware of comment (see, for example Hazell above) to the effect that the recent October Queen’s Speech was more election manifesto than legislative programme, and as such a “sham”. If the “continuator” theory is correct, the ceremonial presence of the Scots Crown at the opening by the Queen of new sessions of the Scots Parliament must in logic be devoid of meaningful symbolism and be more akin to theatre.

Had Cameron informed the Queen before the referendum that in the event of a “yes” vote being recorded, the ancient Crown of Scotland would not be available to her because the UK Government had adopted the “continuator” theory, one could imagine a royal reaction going beyond the raising of an eyebrow. The Queen might well not have been placated by being referred to Boyle’s evidence to the effect that she could have a “new” Crown for a “new state” because “adding one more changes nothing”. Apart from any other concerns, it can hardly have been forgotten that the pre-Union Scottish Act of Security of 1703-04, albeit since repealed, had allowed for the Scots Parliament to choose a different monarch from that of England to succeed to the Scots Crown.

Clearly the post-Union resumption by the Queen of the separately held Crown of Scotland would be likely to bring to Scotland the benefit of seamless international recognition. It might well be that post-Union England, Wales & Northern Ireland might wish to retain the name “United Kingdom”, just as Serbia & Montenegro continued as “Yugoslavia” until the Montenegro independence referendum. Such resumption by the Queen would also definitively rule out the Crawford-Boyle suggestion, based on their “continuator” theory that: “territorial enclaves… might be a consideration if the rUK wishes to retain rights to an enclave within what is now Scotland (such as the naval base at Faslane)” (para.96.2). In my submission such a retained “enclave” or “sovereign base” held by the Queen over herself, in one separate sovereign capacity over the other within “what is now Scotland”, is totally untenable.

A theory based on faulty foundations cannot stand

Writing in this Journal in 2007, the late Professor Walker warned in an article entitled “The Union and the law”: “The proper understanding of the legal nature of the Union is that it was an agreement made in 1706-07, not by the parliaments of Scotland and England, but by commissioners appointed by the heads of the executive of the independent states of Scotland and England (both of which offices were then vested in Queen Anne but acting in different capacities).” It was indeed Queen Anne who approved the Treaty which was presented to her on 23 July 1706 in the presence of foreign ambassadors.

The Crawford-Boyle Annex A opinion makes precisely the error Walker warned against, of asserting that on “22 July 1706, commissioners appointed by the English and Scottish parliaments agreed on 25 articles comprising the Treaty of Union” (Annex A, para 31). The preambles to the Treaty and Acts, which appear to have been overlooked by Crawford and Boyle, make it crystal clear that it was Queen Anne, and not the respective English and Scottish Parliaments, who appointed the Commissioners representing England and Scotland to draw up the Treaty.

This error in this foundation stone of the Crawford-Boyle “continuator” theory is in my submission compounded by their attempt to draw a meaningful analogy between the Union Treaty and an episode drawn from the later colonial history of New Zealand: “The situation is perhaps comparable to the Treaty of Waitangi [1840] between the UK and certain Maori chiefs, which on one view (by no means uncontested but still useful by way of analogy) was an international treaty under which an independent state ceded its sovereignty. This view relies on the assumption that there could have been a treaty and yet the resulting constitutional system could still be identified with only one of the two parties, England, at the expense of the other – which is certainly possible” (Annex A, para 43).

The Waitangi Treaty itself was prepared by local UK Government officials and read to a gathering of Māori chiefs who had had no part in its drafting. There were problems with the translation provided. The Māori chiefs seemingly understood by the translation that they were ceding to Queen Victoria the right of governance in return for the promise of protection, while retaining the authority to manage their own affairs. According to the English text, however, they were ceding sovereignty. The Treaty was signed by the Lieutenant-Governor of New Zealand (and several English residents), and initially by approximately 45 Māori chiefs. By the end of the year over 500 Māori chiefs had signed. One can only conjecture whether the Crawford-Boyle analogy requires one to understand that the 500 Māori chiefs stand for the Scottish Parliament, which Crawford and Boyle mistakenly assert appointed the Scots commissioners, or perhaps Queen Anne herself. In my submission the reliance on the Waitangi Treaty as an analogy with the Union, rather than strengthening the “continuator” theory, is a further pointer to it being wrong in fact and law.

La reyne s’avisera

Cameron explains in For the Record (p 555) that a microphone picked up his words explaining his relief at ringing the Queen after the 2014 independence referendum “and saying it was all right, and that ‘she purred down the line’”. Clearly matters may not be so simple for the Queen in the event that at some future date a Prime Minister telephones her to inform her that a referendum vote has gone the other way and that the Union is to come to an end.

Again let us suppose that the UK Government had once more insisted prior to the new referendum that rUK would be the “continuator state” and Scotland a “new state”. In the tale of Aladdin there was the lure of “new lamps for old”. Would the Queen accept advice from her rUK Prime Minister that she should accept a “shiny new Crown” if offered by the Scots, reassured by Professor Boyle’s evidence that “adding one more changes nothing”? Would the Scottish First Minister of the day be content indeed to offer a “shiny new Crown” for a “new state”, or would he or she advise that the Queen reject the “continuator” and continue to respect the symbolism of the old Crown and its equal sovereignty with the Crown of England? Unless the Queen were to accept the latter advice, the likelihood is that the pound would be lost to Scotland, the possibility of the retention of rUK sovereign enclaves at the likes of Faslane could become a live issue, and Scotland could be faced with rUK’s claim that it alone and not Scotland was to retain membership of international institutions.

Queen Anne was the last monarch to use the formula “La reyne s’avisera” in refusing royal assent to the “Scotch” Militia Bill on 11 March 1708. This was in the light of fears emerging as to the loyalty of such militia. Taking an overview as to the matters discussed in the above paragraphs, one could well consider that our present Queen might take a fresh look at that useful formula – useful that is for fresh employment in other fields than that of legislation, namely when confronted with prime ministerial advice in which she was less than fully confident.

The pressure on the Queen to follow her own counsel might well prove at its strongest when matters affecting her contingent right to the ancient Crown of Scotland were at stake. One may pose the rhetorical question, would the Queen be content to write off her title to the ancient Crown of Scotland so that rUK could have inter alia sole claim to the pound, together with a nuclear submarine base enclave at Faslane?