Austin asks the uncomfortable question: legally, who is really in charge?

I am intrigued by the royal succession story . Evan Harris MP wants the law changed to allow elder sisters and Catholics to go up the ladder instead of down the snake in any future opportunity for enthronement. Gordon Brown has blocked the bill, but promised to look into the question, having also spoken to Mrs. Windsor about it. Some cynics see the growing narrative as a smokescreen for the Prime Minister as he bobs and weaves up to the G20.

As a card-carrying Kafflic I ought to be exercised about this, as national saviours like the Duchess of Kent and Angus Ogilive would be nearer to those who are in line for majesty – assuming a well-timed thermonuclear strike on the better parts of London, Gstaad, Balmoral, and I would feel more elevated by association.

Well, I’m not. Exercised that is. While I admire the Queen for what she has done and has had to put up with, and would rather have a monarch answering to Parliament than say President Miliband , I kind of regard the whole thing as too remote and too arcane to be of any burning interest. I have enough issues and stresses nearer to home that I don’t really have time to consider how many minor royals dance on the end of a pin.

As it is, the whole business of a constitutional monarchy is a classic British fudge. Elizabeth is politically more than the god-emperor Akihito of Japan, and is less than the President of France. She is consulted, and signs stuff that allows the Government or Parliament to act, but there is nothing to stop her IN LAW refusing, demanding changes, or simply not turning up for work, other than the dread prospect of Parliament (eventually) bypassing her and creating a new establishment. Perhaps that is an ideal balance of power – the people run things but are content to do so under the monarch’s notional or nominal authority and the monarch is content for the people to elect their brightest and best ( stop laughing at the back there) to do what is best for all under her name.

It is a number of years since I studied constitutional law, but I am a keen reader of historical books both factual and fictional (give me a good novel of any century before the 20th and I am in a pig’s midden). Indeed there was a brilliant film made of the story of Oliver Cromwell wresting the government of England from King Charles 1 – the monarch being superlatively played by Alec Guinness, who had the last vestige of the Stuart Scottish twang inherited from his actually Scots father and the light speech impediment both off perfectly. We all know the story, but the film concentrated on Charles’ obsession that he was God’s anointed, and no matter how much of a bollix he made of running things, he could not be overthrown or undermined without this being a sin against the holy order of God.

Now that in the real life was indeed a fundamental point of departure for our nation - and at one there was no monarch under the Commonwealth . interestingly Cromwell, played in the movie by Richard Harris as a misanthrope and warty bore, was himself offered the Crown, which he reckoned kind of missed the point of what they had been doing in overthrowing an arrogant but weak bully with a God fixation. In due course, monarchy was restored, and the rest, ahem, is history. With a few fits and starts, executions , contested successions and one barren queen, we have devolved down to our present Germans in sheep’s clothing as our figureheads.

But what is their actual ongoing right to govern in any way at all? Yes the heritable principle – even though it is considered preferable for you to have a penis to reign, and not be a Tim - is the present incumbent’s basis. But dynasties are not applicable for republics and other secular states, and fewer proprietorial assets are inherited in modern societies. What is the fundamental right that underpins the inheritance ? it is difficult to escape the conclusion that even taking into account the Declaration of Arbroath and Magna Carta, we are still paying some kind of obeisance to a religious principle, for good or ill.

I am no apologist for the Holy Blood Holy Grail people, though I have read loads of the books, but actually, even if it just a myth, the justification that ancient monarchs in various places in Europe had – way back in the Dark Ages, was a link to the Holy Land and the priesthood of Israel. The origins are of course now lost in the mists, but if you just dismissed all that as either tosh or too remote to be relevant, what would be the alternative? Can’t see our Liz coming up on Xmas day and saying that she actually owes it all to some blood-hungry warlord from the days of Arthur for her position. And if not either of those, then what?

So the point is ( and I appreciate I have made this sound so far like a pub harangue when I have had too much beer and not enough food by the middle of the evening) why must we obey the authorities at all? Yes they have the de facto power. I am reluctant to refuse to hand over my insurance documents to a polis on the basis that I don’t accept the legitimacy of the Sadducee interlopers who ousted the levite cohanim before the Romans came. But in nature, indeed in the great Cosmos, statutes, Orders in Council, and town bye-laws do not exist. As human society we have developed a system of power and obedience to it. It is to our credit that some parts of the human race have systems that go beyond those two basic laws – the law of the jungle, and the law of supply and demand , but when I am confronted by a stupid or partisan statute, or the unfair enforcement of law by the erroneous judgment of a sheriff or police officer, I can’t help thinking not only of the injustice to me or to my client, but the artificiality of our whole legal system. God may be a watchmaker, but he did not think up parliamentary procedure.

Maybe I am having a bad day, but when I hear of the Government wanting to monitor even whom we talk to on Facebook, and Google being able to take pictures of me coming out of the pub, I do worry more than I usually do about personal freedom. And when it comes down to it, what the law does is more important than where it comes from.

All law is a human construct, and whether God did have a hand in picking the captain or not, our nature seems to make the strong want to hold power more and more. Perhaps there are only those two – the law of the jungle and the law of supply and demand - after all. But it’s crucial that we who have to obey it get a chance to say who makes the call. It’s no wonder politicians hate referenda – the electorate breathing down their neck more than once every four years or so.

So although I don’t care much who our sovereign is on a day-to-day basis, I am happy if there is a vote to change the rights of succession, as it is important that Parliament gets a chance to show the monarch who ultimately calls the shots – and that we ordinary Joes and Josephines show Parliament who is in charge of them.

Austin