What is the royal prerogative?

6615944(115x85)The royal prerogative is a matter of some debate at the moment – notably in respect of triggering notification of the UK’s intention to leave the EU under Article 50 of the Treaty on European Union – but what is the royal prerogative?

The prerogative comprises powers that have inhered in the Crown or in the monarch, but have not been displaced by statute.   Prerogative powers were constricted by the Bill of Rights 1689 – a number were outlawed – and with the growth of responsible government it became established that the prerogative powers that remained were to be exercised by ministers in the name of the Crown or exercised by the monarch on the advice of ministers.  Thus, for example, the prerogative power to pardon someone sentenced to hang was exercised by the Home Secretary.  The prerogative power to declare war was exercised by ministers.  The announcement in 1939 that the UK was at war with Germany was made by the Prime Minister, Neville Chamberlain.  The award of honours and the appointment of ministers is made by the monarch on the advice of ministers, in the latter case by her Prime Minister.

Successive governments have recognised the case for limiting such powers.  Part of the Governance of Britain programme of Gordon Brown was to transfer prerogative powers to Parliament: ‘The Government believes that in general the prerogative powers should be put on a statutory basis and brought under stronger parliamentary scrutiny and control.  This will ensure that government is more clearly subject to the mandate of the people’s representatives’.   The Conservative manifesto at the 2010 election included a commitment to make the prerogative ‘subject to greater democratic control so that Parliament is properly involved in all big national decisions’.

The Brown Government sought to provide for Parliament to take decisions on the commitment of UK troops abroad, but was unable to craft a Bill or motion that would allow sufficient latitude for Government to act at times of emergency.  However, it is now taken as a convention that the Government should seek the approval of the House of Commons before committing forces to action.  The Government did achieve passage of the Constitutional Reform and Governance Act 2010 which provided that a treaty, with certain exceptions, is not ratified if within 21 days either House has resolved that the treaty not be ratified and, if Government nonetheless wishes to persist, within a further 21 days the House of Commons has resolved that the treaty not be ratified.  The Act also put the civil service on a statutory footing.

As regular readers will know (even though some commentators have still to grasp the fact) the Fixed-term Parliaments Act 2011 removed the monarch’s power to dissolve Parliament.  This was identified by Lord Hailsham as one of the two powers accentuating what he termed ‘the elective dictatorship’.  That power has now gone.

There remains uncertainty as to what happens if a prerogative power is superseded by statute, but the statute then repealed.  This is important in the context of the Fixed-term Parliaments Act.  It repealed the Septennial Act 1715 and omitted section 7 of the Parliament Act 1911.  They are no more: they do not come back into being if the 2011 Act is repealed.  However, if the 2011 Act is repealed, does the prerogative come back into play?  That is a matter of some dispute, but the general view is that it does.  However, in the case of the 2011 Act, one would need to enact a statute replacing what it had introduced: a simple repeal would leave it in the gift of the monarch as to when to call an election and a Prime Minister may leave it for many years before requesting one.

The prerogative is, then, much restricted relative to what existed only a few years ago, but it remains an important, and at times controversial, feature of the British Constitution.  You cannot understand British politics with the prerogative left out of the discussion.

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We have a winner…

dsc_2341There were some excellent entries for the caption competition.  Every one was a potential winner, though the edge of some was possibly blunted by the fact that (a) I am a Methodist and (b) I have better things to do than watch food programmes; and indeed am not a great food buff. There were some very clever entries – Croft and Jonathan were serious contenders – and I thought Peter L.Foster’s linked nicely to politics: ‘Professor Margaret Archer to Professor John McEldowney: All those late night sittings have finally caught up on him.’

However, the winner – and regular readers will grasp immediately why this struck a chord – was Tony Sands with: ‘And when do you think Theresa May will call a general election, Lord Norton?’

If he gets in touch, a publication will be on its way.

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Repealing the Fixed-term Parliaments Act?

20161008_174622Some commentators, as I have previously noted, still appear to be unaware of the Fixed-term Parliaments Act and think that the PM can call a ‘snap’ election.  It is no longer in the gift of the PM to ask the Queen for a dissolution of Parliament.  The Queen has now no prerogative power of dissolution.  If the PM wants an early election, she has to go to the House of Commons to get a 2/3 majority of all MPs for such an election.  The only other route is through the House passing a motion of no confidence (and it has to be a motion of no confidence – not a vote of confidence that is lost); if within 14 days a new government is not formed and gets a vote of confidence, an election takes place.  An early election is thus possible, but it is not for the PM alone to determine.

Some journalists are now alert to the fact that the Fixed-term Parliaments Act exists and a few appreciate precisely what it entails.   However, it is not unusual for reference to the Act to be almost in passing – it can be ‘fixed’ or ‘simply repealed’.  The latest example is Peter Oborne in The Daily Mail.  It is not clear that those who cover it in this way are cognisant of the provisions of section 2 of the Act.  My principal point, though, is in respect of calls for its repeal.  The Act cannot be simply repealed or set aside by a vote of the House of Commons.  It can only be repealed by another Act of Parliament.  This, contrary to the views of Peter Oborne and others, is not that simple.   An Act that repealed the 2011 Act and did no more than that would mean that Parliament could potentially continue in perpetuity.  Repeal of the 2011 Act does not entail the previous provisions governing elections coming back into force.  The Septennial Act 1715 was repealed by the 2011 Act. Section 7 of the Parliament Act 1911 was removed by the 2011 Act.  Repealing the 2011 Act does not bring these provisions back into effect.  They have gone.  There is a dispute about whether the prerogative resumes, but if it does all that means is that Parliament would continue until such time as the Queen agreed to a dissolution.  A PM could leave it for some years before requesting a dissolution.

In short, a simple repeal is not politically feasible.  The measure would have to stipulate the provisions for future elections.  One could put the position back to what it was before September 2011, but that has to be provided for in the Bill.  Not everyone may agree to reverting precisely to what existed before.  Why not stipulate that the maximum life of a Parliament should be four years rather than five?  Why not introduce some limits of the power of the Prime Minister to request a dissolution?  This does not mean that one could not get the measure through, but it does mean that it would generate debate and likely attempts to amend it.  In short, possible, but not necessarily simple.

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October caption competition

A friend was keen to remind me recently that I had not posted a caption competition for some time.  (I did point out that the blog was designed primarily for what were intended as informed posts on constitutional and other developments!)  dsc_2341 Anyway, here is the latest picture for the caption competition.  It was taken at the Judges’ Summit at the Vatican in June.  I am flanked by law professor John McEldowney and Professor Margaret Archer, President of the Pontifical Academy of Social Sciences, under whose auspices the summit was organised.  As usual, the winner will be the reader who offers what in my view is the wittiest and most appropriate caption and the prize will be one of my publications.

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Constitution under pressure…

cszzcadxgaawy5p20160917_091931August was a busy month writing, whereas September has seen a shift from writing to speaking.  On 14 September, I was part of a panel (pictured right) at the Yeoh Tiong Lay Centre for Politics, Philosophy and Law seminar on ‘Taking “Brexit” Seriously: A Dialogue’ at King’s College London.  I focused on Parliament and Brexit.

It was then a case of heading to Scotland to speak on 17 September at a Forum for British and Irish Political Thought colloquium on ‘The Present Crisis: Origins and Outcomes’ at St Andrew’s University.  (The picture, left, shows me in windswept St Andrews.)  My paper was titled ‘The Union and devolution: diversity and incoherence’.

I then moved from Scotland to Belgium in order to speak on 20 September at a PADEMIA: Parliamentary Democracy in Europe Workshop on ‘The Impact of Referenda on Parliamentary Democracy’ (yes, I did explain why referendums is to be preferred to referenda), focusing on the consequences for Parliament of the outcome of the June referendum.

In the talks, I was able to draw on recent reports produced by House of Lords committees, not least the Constitution Committee.  In looking at the Union and devolution I drew, not surprisingly, on the Committee’s report on The Union and DevolutionOn addressing Parliament and Brexit, I called attention to our most recent report, The Invoking of Article 50It is a short, but in my view an important analysis of the role Parliament should play.  I was able also to draw on the European Union Committee reports on The process of withdrawing from the European Union and Scrutinising Brexit: The role of Parliament

The reports provide valuable contributions to discussion on not only Brexit, but also the need to look more conceptually at our constitutional arrangements.  They also demonstrate the value of the House of Lords in addressing such issues.  The existence of the Constitution and EU Committees means that we already have in place some institutional means for identifying what should be done in rather volatile and uncertain times for our constitution.

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Who speaks for Parliament?

ParliamentMy article, ‘Speaking for Parliament,’ has been published online by Parliamentary Affairs.  It will be appearing in a print edition in due course.  It is based on my Michael Ryle Memorial Lecture, delivered in Speaker’s House in July.

The theme of the article is straightforward.  For Parliament, these are the best of times, these are the worst of times.  They are the best of times in Parliament’s relations with the executive.  Both Houses are now more effective in calling government to account than at any point in modern British history.  They are the worst of times in terms of Parliament’s relations with the public.   People have always been critical of politicians, but recent decades have seen a growing distrust of parliamentarians.  The expenses scandal may have exacerbated the distrust, but it is not the cause and has not had the impact parliamentarians attribute to it.  The problem is more longstanding.

Parliamentarians have tended to adopt a ‘tin hats’ approach, retreating to the bunker until the problem goes away.   Adopting a reactive and passive approach will not help enhance Parliament’s reputation.  However, adopting a proactive response is hampered by the unique nature of Parliament.  Parliament is an entity that comprises two distinct chambers, each of which is the sum of several hundred independent units.  There is no one who can speak for Parliament.  There is no equivalent, as in business, to a chair or chief executive who can respond as soon as there is a crisis.  There is no CEO of Parliament.  The Clerk of each House is the chief executive officer of the House, but is not the same as a company CEO.  MPs and peers are not the equivalent of company employees or shareholders.  The intrinsic nature of Parliament hinders its capacity to deal with attacks.  Doing a good job in scrutinising the executive will not counter popular distrust.  Rather, what is needed is for MPs and peers to act proactively to defend and promote the interests of the institution of which they are members.

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Dispelling myths….

44101As regular readers will know, I have variously taken issue with claims that are incorrect, but which have continued to be recycled by commentators.  I suspect the problem is exacerbated nowadays by the fact that commercial pressures and a 24-hours news cycle means that news outlets do not have time to check and so simply regurgitate what someone else has said.  I thought it may be helpful to draw together some  previously identified in posts on the blog.  (Click on the italicised title to see the relevant blog post.)  As the more avid readers will recall:

1. A Prime Minister can no longer call a ‘snap’ election The Fixed-term Parliaments Act 2011 has removed the monarch’s residual power of dissolution.  Some commentators, I am pleased to say, do now recognise the implications of the Act.  Others are aware the Act exists, so work in reference to it, but along the lines of ‘The Fixed-term Parliaments Act is a problem, but it can be fixed’.  They do not say how it can be fixed.  To me, that suggests that awareness of the Act’s existence does not extend to knowing its provisions.  Some still seem to think that the PM can go to the Palace to request an election.

2. Magna Carta 1215 did not establish our liberties David Cameron when PM made grand claims for the Charter as the basis of our democracy and our rights and liberties.  It was not the first charter to concede rights and the rights it was protecting were essentially those of the barons.  ‘Freemen’ at the time comprised a rather small body.  It was not the basis of jury trials.  Insofar as Magna Carta merits celebration in this country, it is the Magna Carta of 1216 (or that of 1225) and not that of 1215.

3. Mhairi Black is not the youngest MP since 1667.  This appears to derive from a well-known broadcaster on election night Googling to find the name of the youngest MP in history and assuming that a 20-year old elected in 2015 must be the youngest since that time.  Prior to 1832 it was far from unusual for an MP to be returned under age and for the House to accept the election, despite minors being prohibited from sitting.  Charles James Fox was elected at the age of 19.  One Member was elected in 1832 having just turned 18.  Mhairi Black is the youngest MP since 1832.  Given that MPs before 1832 who were allowed to sit under age did so despite minors being prohibited from sitting, Ms Black can point out that she is the youngest MP in history lawfully to take her seat.

4. The Conservative 1922 Committee was not formed in 1922 The Committee came into existence in April 1923.  Its name derives from the fact that it was formed by a number of Conservative MPs first elected in the general election of 1922.  They formed what amounted to a self-help group which they called the Conservative Private Members’ (1922) Committee.  It later expanded to encompass all Conservative Private Members.

5. It is more appropriate to say referendums than to say referenda.  Some people insist on ‘referenda’ without realising that as a Latin gerund referendum has no plural.  That it is more appropriate to use referendums is recognised by Parliament, which is why all parliamentary reports on the subject use ‘referendums’.

I am sure readers can suggest others to add to the list….

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