Religion, law and the constitution

Balancing beliefs in Britain

For many people, the mere idea of losing a passport on the way to the airport is enough to inspire cold chills, but this pales into comparison with a young Marc Isambard Brunel misplacing his travel documents in the process of fleeing the carnage of revolutionary France. The truth is that he had been going through a phase of poor life choices, having openly expressed his royalist sympathies and made some very unflattering comments about Robespierre. Fortunately for the future of engineering, he used his formidable drawing talents to forge a convincing enough replica to satisfy the authorities, because had his handiwork not come up scratch, the world would have missed out on his constructions and innovations, not to mention those of his more famous son, Isambard Kingdom Brunel.

The close of the eighteenth century was a time at which the capacity and inclination of States to control human movement across borders was growing.  It was also an era in which philosophers, idealists, iconoclasts and Governments were all alike interested in the nature of the social and political ties between individuals and the States where they resided.  The language of citizenship was bound up with the American and French revolutions.  For radical contemporaries, the term “citizen” signified a member of the body politic, whose loyalty to the collective project of the State was given in exchange for guarantees of security, justice and enjoyment of freedoms. The slogan of libertéégalité, fraternité had a strong appeal to many who dreamed of a more equal and compassionate society. Even though much of the idealism of revolutionary France was ultimately washed away on a tide of blood, the power of those words, and the vision that they encapsulated, continued to resonate down the centuries.  Unquestionably, the spirit of libertéégalité, fraternité is still at the core of the Constitutional Culture of the Fifth Republic, and contemporary France.

In stark contrast, the United Kingdom did not have a revolution on home soil at the close of the XVIII century. This meant that the population of the British Isles, and indeed its remaining overseas territories, continued to be subjects of the Crown. In the traditional model, unlike citizens bound together for mutual benefit in the social contract, subjects owe obedience to a monarch for reasons rooted in religious doctrine and oaths of personal loyalty.  The United Kingdom retained the outward trappings of this framework, whilst at the same time edging towards a liberal democratic State in the modern sense.

This did not mean that the concept of citizenship had no relevance in the intellectual or political ferment.   In a famous debate over foreign policy, sparked by a clash with Greece over compensation for losses sustained by two British nationals during Anti-Semitic riots in Athens, Foreign Secretary Lord Palmerston made explicit reference to British subjects as citizens.  He referred to the significance of Roman citizens in antiquity being able to declare “Civis Romanus sum”, and count on the backing of Rome for defence and protection, arguing that the mantra “Civis Britannicus sum” ought to be equally potent.

Without doubt, from a XXI century perspective, many aspects of Palmerston’s speech and mindset are problematic, as it is a worldview rooted in an uncritical support for imperialism, with all of the oppression, injustice, exploitation and human suffering inherent in colonial activity.  Furthermore, the quite literal use of gunboats in a bid to enforce liberal values was an irony not lost on Palmerston’s contemporary critics, with even some mid-Victorian voices questioning the blatant double standard of the British Empire.  Nevertheless, the notion of “citizenship” as a legal status which imposed duties upon the State to actively protect the rights and welfare of individual members has had ongoing significance throughout the years.

Within a modern legal context, British Citizen and British Subject have distinct technical meanings, referring to two of the five categories of British nationals, with differing rights being accorded to each, but independently from these technical definitions, the terms citizen and subject continue to be used in the Palmerston sense, as coterminous concepts, whilst describing the relationship between individuals and the state.  Is there any significance in this?    Does it matter whether people are described as subjects of the Crown or citizens of the United Kingdom?

Certainly, Constitutional Law is a branch of the legal framework in which symbolism is important.  It does not simply exist to regulate actions and restrain the worst excesses of human behaviour, it also encapsulates the common, cohering values of a society.   Arguably, there is space within the United Kingdom context to make more explicit provision for egalitarian dimension of citizenship, because in contrast with many other States, including several constitutional monarchies, there has never been an official and clear declaration that sovereignty lies with the people.

Indeed, the theoretical position is still that the executive power is exercised in the name of the Crown, and the royal prerogative in particular is derived from the remaining vestiges of the personal authority vested in medieval monarchs.  To be fair, most elements of the royal prerogative are now subject to review by the judiciary, and all aspects of residual power can be removed or controlled by statute, as courts made clear in the early XX century case of AG v De Keyser’s Royal Hotel [1920] AC 508.  It is also significant that from the trial and execution of Charles I onwards, monarchs have effectively reigned at the pleasure of Parliament, a principle reinforced by the unceremonious removal of James II. Therefore, taking all of this into account, is the subjection of subjecthood nominal rather than real?

As with so many other constitutional questions, the answer ultimately depends upon the values of the observer.  It is reasonable to assert that the sometimes arcane theoretical underpinnings of the legal framework make little difference to the lives of people on the street.  The current King is unlikely to turn up on anybody’s front door causing mischief in the style of King John of the Magna Carta, and for generations the royal family has had a firm policy of steering clear of party politics.

Yet at the same time, individuals wishing to serve in the armed forces, as judges, magistrates, police-officers, Church of England and members of Parliament must still swear oaths of allegiance to the monarch.  There is an option to make a non-religious solemn affirmation (and happily in the case of MPs to make the oath or affirmation in English, Welsh, Scottish Gaelic or Cornish), but there is no possibility of a republican formula.  Any MPs refusing to comply will be given a monetary fine and have their seat declared vacant “as if they were dead”.  Office-holders cannot have the option of promising to serve the people or community, even if they ideologically object to royal authority, despite this being a legitimate position, protected by Articles 9 and 10 of the ECHR.

Do these outward, ceremonial trappings make a difference to how members of society see themselves and their neighbours?  Is it really possible to be free citizens and also subjects of the Crown? It might be argued that this is simply one of the many examples of apparently mutually inconsistent realities snuggling side by side in the British Constitutional framework, or equally, it might be deemed inherently problematic, and a theme for review whenever the next round of major constitutional reforms take place. Could this be a moment to consider whom Parliament serves, as well as our constitutional attitude towards hereditary privilege?

Afterall, this is not a stark monarchy/republican choice, bearing in mind that, as noted, many constitutional monarchies exist in frameworks where the sovereignty of the people is explicitly paramount, and the first loyalty of constitutional actors is deference to that collective authority.  Could such a move bring a new, and positive dimension to British citizenship, emphasising the equal status of all members of society, and mutual responsibility which we all have for our common welfare and decision-making?

Related Articles

Michael Savage “Keir Starmer: I will abolish the House of Lords to restore trust in politics” The Guardian (19/11/22)

Gail Bartlett “The Royal Prerogative” House of Commons Research Briefing (17/4/2019)

David Brown “Lord Palmerston and the Civis Romanus Sum Principle” UK Government, History of Government Blog (20/4/2015)

UK Parliament “Swearing in and the Parliamentary Oath”