Angela Shanahan: The queen is not above the law

The Australian
19 November 2002

The Queen and the butler is a very good story. What with sex, royalty, crime and the glamorous ghost of Diana still hovering, it has been a gift to the popular press.

There are two strands in the present royal imbroglio. One is what I would call the cultural issue; that is, whether royalty is an anachronism and a natural hindrance to egalitarian ideals of justice.
The scandal and confusion between the Queen and other members of the royal family is part of this strand, and because it has the juiciest bits the press have alighted on this aspect of the Burrell affair.

The recent Newspoll, which shows no increased support for an Australian republic, seems to indicate that Australians regard it as just another scandal of the royal family. But the other issue is the serious problem raised by the fact the Queen is unable to give evidence in her own courts and whether this necessarily means that the Queen is above the law.

The Burrell case is not the first time this problem has arisen. In the case of George V vs Mylius, the king was unable to give evidence in a prosecution for criminal libel. But the issue that also looms here is what mechanism might be employed if the monarch can't be tried by her own courts. This has not been tested in modern times but monarchists argue that, because the Queen is under oath to uphold the law, she cannot be above it, so there is no reason to call the system into question.

But republican commentators – although still nursing their Dismissal grievance – rightly emphasise that the Burrell affair should prompt us to question the system and investigate its mechanisms. For a sceptical and intelligent Australian public, failure to address these questions will undermine the future of our constitutional monarchy more successfully than any attempt to portray the Queen as a quaint cultural anachronism.

There is no reason to think that the Queen acted improperly in the Burrell case. Tony Blair has said she behaved "entirely properly". She was not briefed by the prosecution in the case, she was in Canada when it began and presumably she remained silent because she, like everyone else, assumed there was a good case against Burrell and she waited for proof. When the prosecution conceded that there was no proof that any items had been sold, the Queen was entitled to conclude that Burrell had acted consistently with his assurances to her and this could be an important item in his defence. Consequently, she proffered her evidence.

Speculation concerning her motives is just that. But it is possible she was motivated by a desire not to allow a miscarriage of justice. She did not abort the trial; that was the prosecution's decision. Still, the fact is that she can't be called as a witness and therein lies the big potential problem that the Australian public is only beginning to grasp.

But the cultural issue – the monarchy as an anachronism in the modern world – has loomed larger in this case. For a lot of people, opposition to the monarchy begins and ends there. The Queen's popularity in the 21st century is puzzlingly irksome to these self-appointed progressives. There is an assumption that her flunkies, including her personal private secretary Robert Fellowes, don't tell her what she doesn't want to hear. Not according to her former personal private secretary William Heseltine, who told me that he had never had this problem. But, of course, Heseltine is a plain-speaking Australian, born and bred in Western Australia, the son of state school teachers. The royal household staff is composed of professionals doing a job and they would not have tailored their advice. But the homosexual clique within Prince Charles's household is a different issue. And the suspicion has been planted by the English press that fear of exposure has affected the conduct of the Burrell trial.

The two strands of this issue highlight the paradox of the crown. The Queen is a sign of contradiction. She represents stability, a protector of justice, sworn to uphold the law, but as the anchor of an elaborate constitutional edifice she cannot simply be above it. Just as her popularity is part of her role as the embodiment of the nation, so as a symbol of stability she must be above seeking popularity, and the restraints intrinsic to the apolitical position she embodies tend to encourage the view of the crown as a remote anachronism propped up by antiquated notions of inequality. Likewise, the schizophrenic and fickle media loves the royals to be the embodiment of everyman and "Cool Britannia", but it enjoys portraying the Queen as a hangover from the ancien regime.

Despite the unexpected success of the Queen's jubilee year, and her continuing ability to marry her constitutional role with her personality and sense of duty, the legal questions raised by the Burrell episode could pose a more acute threat to the monarchy than any chapter in the ongoing royal soap. So can the Queen have her cake and eat it too?

© The Australian