Crowning Glory: Public Law, Power and the Monarchy
| Author | Thérèse Murphy,Noel Whitty |
| Date | 01 March 2000 |
| Published date | 01 March 2000 |
| DOI | 10.1177/096466390000900102 |
| Subject Matter | Articles |
CROWNING GLORY: PUBLIC
LAW, POWER AND THE
MONARCHY
THÉRÈSE MURPHY
University of Nottingham, UK
AND
NOEL WHITTY
Keele University, UK
ABSTRACT
‘New public law’ has a keen interest in the deployment of power and the shifting
nature of the public and private. In this article, we argue that the historical legacy of
the Crown has hindered the ability of public lawyers to respond to changes in modes
of governance in the UK. The constitutional law textbook tradition has played a key
role in limiting critiques of the Crown because of the obfuscation that surrounds the
legal and political status of the Monarch. However, instead of discounting the sig-
nificance of the monarchy, we use it as a resource for exploring governing power, the
blurring of boundaries and constitutional renewal. Our starting point is the life, death
and, most importantly, the funeral of Diana, Princess of Wales. The latter event
exposed the political relevance of the ‘personal’ in a most dramatic way, generating
claims about the ‘feminisation of the government’ and ‘emotions augmenting democ-
racy’. We follow through on these claims in order to focus on the effects of adopting
private, intimate-sphere norms in the public sphere, in particular public-sphere
decision making. While aware of the risks associated with this ‘transformation’ of
democracy, we conclude that the increasing centrality of the intimate merits con-
sideration in new public law’s search for progressive tools of modern governance.
INTRODUCTION
PUBLIC LAW is now in vogue in the UK and there is an excitement
about a subject that has failed traditionally to capture the public imagin-
ation (Barnett, 1997; Freedland, 1998). Credit for this change of outlook
tends to go to New Labour and its constitutional reform programme,
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described by the Lord Chancellor as ‘arguably the most radical ... since the
Great Reform Bill of 1832’ (Irvine, 1998: 1). To date, the highpoints in this
ongoing project of modernising British political institutions are devolved
government for Scotland, Wales and Northern Ireland, the Human Rights Act
1998, House of Lords reform and an elected London mayor (Blackburn and
Plant, 1999a; Partridge, 1999).1
Modernisation is also the theme of what can be described as ‘new public
law’ scholarship (Millns and Whitty, 1999). The historical parameters of
public law writing are collapsing amid the sense of constitutional upheaval
and renewal, and as Loughlin argues, ‘[f]ew people seem able any longer to
call to mind a world in which the British constitution made sense...’ (1997:
1). New public law’s key challenge is to the doctrinal tradition familiar to
generations of law students – best exemplified in Constitutional and Admin-
istrative Law, the textbook by Bradley and Ewing (1997). This tradition is
founded on a ‘series of comfortable ideas handed down from Blackstone to
Bagehot to Dicey’ that confine contemporary public law textbooks to ‘par-
ameters set within a different age’ (Morison and Livingstone, 1995: 1, 6). The
influence of Dicey, ‘the high priest of orthodox constitutional theory’, is par-
ticularly pernicious (Loughlin, 1992: 140). In the Diceyan tradition, Parlia-
ment is the absolute locus of political authority with the result that ‘the main
textbooks ... [still] reveal a world where the exercise of power is more or less
neatly within the collection of institutions that the accidents of a long history
have thrown up’ (Morison and Livingstone, 1995: 6).
New public law scholarship exposes the deficiencies of this doctrinal tra-
dition by emphasising the redrawing of public and private. It argues that pri-
vatisation of utilities, deregulation, contracting-out of services and the
creation of new executive agencies and quangos represent radical changes in
public administration, changes that undermine orthodox constitutionalism
(Harlow, 1994; Taggart, 1999). A particular criticism is the inadequacy of a
court-centered, remedy-based system of administrative law (see, for example,
Wade and Forsyth, 1994) in responding to the privatisation and contractual-
isation process (Galligan, 1996; Harlow and Rawlings, 1997; Prosser, 1997;
Taggart, 1997). New public law’s key recognition is that ‘[w]ith the system-
atic dispersal of the sites of power beyond the confines of what we had
learned to recognize as the state, the old certainties of public law are no longer
there’ (Sedley, 1997: vii).
The new certainty of public law is ‘constitutional reform’. Throughout the
1980s, and certainly since the election of the New Labour government in
1997, a conviction has solidified among mainstream public lawyers (Beatson
et al., 1998; Brazier, 1999) that a modernisation programme is the remedy for
ailing British constitutionalism. In short, replacing Diceyan orthodoxy is
now the new orthodoxy in public law (Hunt, 1998; Loughlin, 1997; Morison
and Livingstone, 1995). Once again, though, new public law is sceptical. It is
not opposed to the modernisation of political institutions or the development
of a rights culture in UK law; rather, it argues that the nature of the late capi-
talist state necessitates fresh approaches to public power and democracy:
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