Prince Charles’s “spider letters” show that the monarchy is not just a feudal relic but part of the “democratic deficit”.
We live in a free and democratic society, with a fearless free media who hold the possessors of power to account, bringing the spotlight of truth to bear upon their activities. Yet, what’s this? The BBC apologising and cowering like a whipped dog because one of its journalists revealed that the reigning Monarch had queried with Ministers why Abu Hamza had not been deported. That is, a BBC reporter reporting on the functions of government and the institutions of state. Precisely what a reporter should be doing in an open and democratic society. Except, what the reporter had revealed was precisely the absence of democracy at the heart of government.
This comes alongside the twin running battles the Guardian is having with the government through the information commissioner. They want the government to reveal the rules by which Queen Elizabeth and Prince Charles are given the right to veto parts of acts of parliament that concern their interests. They also want the government to reveal details of letters sent by Prince Charles, lobbying government ministers and trying to influence policy. The government, apparently with palace backing, are fighting tooth and claw to stop these documents being revealed.
What is at stake is effectively monarchical interference in both executive and legislative functions of state: promoting policies to ministers and then editing bills going before parliament. These are permanent, unremovable, unelected people having key and decisive influence over the laws that we have to live under. Importantly, their veto extends to commercial matters, involving the vast holdings of the Crown and the Duchy of Cornwall. That is, they have the personal right to write the laws that give them an advantage over commercial rivals.
As the Guardian notes: “In the past two parliamentary sessions Charles has been asked to consent to at least 12 draft bills on everything from wreck removals to co-operative societies. Between 2007 and 2009 he was consulted on bills relating to coroners, economic development and construction, marine and coastal access, housing and regeneration, energy and planning. In Charles's case, the little-known power stems from his role as the head of the £700m Duchy of Cornwall estate, which provides his £17m-a-year private income.” (http://tinyurl.com/8frkdcq)
Such legislative power also extends to changing employment law with regards to the Royal households. So it is not just the principle of Royal interference in the law, it is also the practice that can have dramatic real-world effects for those finding themselves employed by the sovereign.
As the judges ruling in the case of the release of Prince Charles’ letters, such matters are covered by constitutional convention. That is, there is no law covering them (and so they are not directly subject to judicial oversight). In the case of Charles’ ‘Black Spider Memos’ (so-called because of his handwriting), the government was claiming they were subject to immunity from freedom of information laws because they were part of his training to be a future Monarch, and so he must be able to correspond with ministers and learn how government works (and presumably, have access to privileged information unavailable to mere voters).
This is an extension of the constitutional convention of confidentiality surrounding the relationship of the Monarch to their ministers. As the judges explained, by convention the Monarch is entitled “to be consulted, to encourage and to warn.” (http://tinyurl.com/97bnya8) (This is accompanied by its twin convention that the Monarch must act on the advice of their ministers. So, in the weekly meetings between Queen Elizabeth and her Prime Minister, we can infer that she is not merely apprised of current events, but consulted and asked for her opinion (and given an opportunity to freely give her encouragement and warnings). The principle of confidentiality surrounding these conventions is that the Monarchy is supposed to defer to parliamentary sovereignty, and be politically neutral. If, though, Elizabeth is giving opinions and warnings (and vetoes) then, practically, she is not being neutral. The cloak of silence merely covers up her political positions and actions. She is merely seen to be neutral. Convention protects her from controversy.
So, when Frank Gardner revealed on the Today Programme that Elizabeth Windsor had been asking her Home Secretary why Abu Hamza could not be arrested, he was revealing a dark secret at the heart of government, the secret of the reality of royal interference. The BBC apology was instant, abject and craven. It was so important to swiftly redraw the curtains because the cornerstone of this arrangement is what in international affairs is called ‘soft-power’.
One constitutional scholar defines conventions as existing:“if (i) there are precedents underpinning it, (ii) the parties to the relevant practice consider themselves to be bound by it and (iii) there is a reason for the existence of the convention” (http://tinyurl.com/97bnya8).Whilst either side of the convention may breech it, an act which is technically unconstitutional, there is no way to enforce such rules through the courts. Note that this applies to both sides. The Monarch retains the implicit capacity to cause governmental mayhem by beginning to more vigorously exert or stretch their veto capacity. Further, the Royal Family continue to retain considerable public sympathy, and it would be a hard battle for any government to publicly fall out with the Crown. A wise politician avoids unnecessary battles, and so both sides negotiate around the existence of the nuclear option (and possible mutual destruction). Through such means the Monarch, being able to excise clauses of bills affecting them, exercises a power US presidents can only dream of: the line item veto. It effectively makes Elizabeth a legislator.
In his play, The Apple Cart, Bernard Shaw explored this residual Royal power (the play’s title suggests the precarious balance of power between Crown and executive). Although his King Magnus, has been seen as in line with Shaw’s attraction to the idea of the strong leader, the play does explore this mutual relationship between the power of the elected state and the aesthetic appeal of Monarchy (what some constitutional scholars call the ‘dignified part’ of the state). He notes that for the professional politicians, the Monarchy provides an alibi and a distraction, belying their inability to compete with the real, effective power of capital. The centre of that play is the long dormant general right of Monarchs to withhold Royal Assent to Acts of Parliament. This power has not actually been used since Queen Anne, but it remains like a constitutional shark lurking beneath the waters. No Monarch could use it without bringing the whole constitutional house of cards down, but what Prime Minister would want to be in the position of facing that crisis?
Real politicians like to promote and thus bask in (and share) the popularity of the Royal Family as well as some of their unaccountable prerogative powers. The continued existence, influence and organised light-fingeredness of Elizabeth and Charles Windsor is their small price to pay. The rich pageant of the dignified parts of state provide depth and meaning to their tiny roles in a pitiless bureaucracy hemmed in by the real power of property.
The good news is for conspiracy theorists: there really is a vast, organised conspiracy at the heart of the state. The sad reality, though, is its name is government. Secrecy is the essence of warfare, and the government is an ongoing armed campaign against the vast majority of people. Should the professional politicians ever need a large-scale distraction to mobilise support, there is no doubt they would happily throw the Windsors under a bus.
On 16th October Dominic Grieve, the Attorney General used his veto under the Freedom of Information Act to block publication of Charles Windsor's letters. He said: "Much of the correspondence does indeed reflect the Prince of Wales's most deeply held personal views and beliefs. The letters in this case are in many cases particularly frank. They also contain remarks about public affairs which would in my view, if revealed, have had a material effect upon the willingness of the government to engage in correspondence with the Prince of Wales, and would potentially have undermined his position of political neutrality." The Guardian is understood to be considering taking the case to the High Court. His decision speaks volumes.