3. Rip up the Royal Prerogative

Beyond Brexit:

A programme for democratic reform

3. Rip up the Royal Prerogative

This monarchical veto on democracy is an affront to the people.

Luke Gittos
Columnist

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Topics Brexit Politics UK

In the third piece in our five-part programme for democratic reform, Luke Gittos makes the case for scrapping Royal Prerogative powers. Read Brendan O’Neill’s introduction to the series here, Mick Hume’s piece on why we must leave the European Union here, and Tim Black’s piece on why we must abolish the House of Lords here.

Boris Johnson was elected leader of the Conservative Party on 23 July. He didn’t become prime minister until the following day, however, when he was appointed by Queen Elizabeth II. The reason? The Royal Prerogative – the anachronistic qualification of British democracy which means the monarch retains the power to appoint the prime minister under our unwritten constitution.

In the words of 19th-century legal theorist AV Dicey, the prerogative is the ‘residue of discretionary or arbitrary authority, which is at given time legally left in the hands of the Crown’. In other words, prerogative powers are those exercised by the Queen without any need to consult parliament. These include the power to appoint ministers, to declare war, and to enter into international treaties. If, as part of the Brexit process, we are serious about restoring power to parliament, and more importantly to the people, then these remnants of monarchical power have got to go.

Prerogative power has always been in conflict with democracy. Early legal cases that considered and challenged the use of the Royal Prerogative came about when the arbitrary power of the monarch came into conflict with parliament. In 1606, a merchant refused to pay duty on goods that had been imposed by King James I. It lead the courts to consider the ‘Case of Impositions’, one of the earliest legal challenges to the extent of prerogative power. The case led to parliament legislating to prevent the king from imposing tariffs without its consent, in the 1628 Petition of Right. It was, in part, Charles I’s continued use of royal power to collect customs which led to the English Civil War of the 1640s. The Glorious Revolution of 1688 and the Bill of Rights in 1689 limited prerogative powers further. Article 1 of the bill stated that the ‘power of suspending the laws or the execution of laws by regal authority without the consent of parliament is illegal’.

Yet the fight against prerogative power was never truly won. The English constitutional theorist Walter Bagehot wrote in 1878 that the monarch retained the right ‘to be consulted, to encourage and to warn’. Bagehot thought that such power was justified because the public, apparently unable to understand the complexities of the constitution, would be more willing to abide by the will of the king than by ‘impersonal laws’ passed by parliament. Today, Halsbury’s ‘Laws of England’, the encyclopaedia of law in England and Wales, echoes Bagehot in describing how the monarch ‘has the right to be consulted, the right to encourage, and the right to warn’, as well as to ‘offer, on her own initiative, suggestions and advice to her ministers even when she is obliged in the last resort to accept the formal advice tendered to her’.

These rights are significant. They guarantee a political role for an unelected monarch. Consider the significant power the queen would wield in the event of an inconclusive General Election. In 2010, senior civil servants prepared for a hung parliament by consulting the Armstrong Memos, a series of memoranda drafted by Labour prime minister Harold Wilson’s private secretary, Robert Armstrong. The memos explained how the queen’s power operates in an election in which no party wins an overall majority. The memos suggest that the queen has the power to appoint someone who is not the elected leader of the largest party, or even the elected leader of the second largest party, in the event that this is more conducive to forming a coalition. In 2010, this became known as the ‘Miliband option’, as it was thought that the Liberal Democrats may have preferred to enter coalition with David Miliband, the then foreign secretary, rather than the then prime minister, Gordon Brown. She could also refuse a prime minister’s request to dissolve parliament shortly after an inconclusive election unless she was satisfied that another vote was ‘unavoidable’.

Also, consider the secrecy that surrounds these powers. Only last week Boris Johnson was accused of ‘breaking protocol’ when he reported publicly what was said by the queen during their private meeting. Prerogative powers and regal influence are exercised behind closed doors in order to protect the role of the monarch from public scrutiny. The queen could still be entitled effectively to resolve the results of a democratic General Election in private.

It is true that Royal Prerogative power is generally exercised by ministers on the queen’s behalf. Constitutionally, she is bound to follow the government’s advice. But that doesn’t mean that the powers are merely symbolic. On the contrary, these powers allow ministers to behave like monarchs. The effect of the Royal Prerogative is to give ministers extensive power to make decisions away from the scrutiny of democratic debate and engagement.

These decisions affect the day-to-day running of the state and also the conduct of international affairs. The Royal Prerogative is used to appoint ministers and senior civil servants. Members of the judiciary were appointed by prerogative powers exercised by the Lord Chancellor until 2006, when that power was delegated to the Judicial Appointments Commission.

Prerogative powers are often deployed in underhand ways. In 1997, then prime minister John Major prorogued parliament in order to avoid parliamentary discussion of a report into the ‘cash for questions’ scandal by the parliamentary commissioner, Sir Gordon Downey. Five Tory MPs had been accused of taking significant sums of money to ask questions on behalf of Mohamed Al-Fayed, the millionaire owner of Harrods. Major prorogued parliament for the longest time since 1918. The Liberal Democrat MP Simon Hughes accused Major of taking the decision to prorogue parliament in an ‘entirely personal’ way in order to prevent MPs from debating the report prior to the election.

Prerogative powers have also had a significant impact on international relations. It reached the headlines in 2017, when Gina Miller challenged the government’s authority to trigger Article 50 using the Royal Prerogative. But this was not the first time the prerogative shaped our relationship with the EU and its preceding institutions. Then prime minister Edward Heath used prerogative powers to sign the treaty that entered the United Kingdom into the European Economic Community in January 1972. It was assumed that parliament would simply agree to the treaty later on. Parliament did not ratify it until October 1972. The public did not have a say on EEC membership until the referendum in 1975. The prerogative has always allowed decisions regarding the EU to take place over the heads of the people.

Then there is the decision to go to war. Sending citizens to fight is surely the most important decision a country can take. Yet this decision is still taken in the name of an unelected monarch. Prerogative power means that any parliamentary vote on the decision to go to war is merely advisory and not binding on the government’s decision. It has become a convention for parliament to vote on foreign intervention, but the government can still take the country to war against the will of parliament. This reflects a principle of our constitution that elevates the will of the queen, as expressed through ministers, above the views of the elected MPs, and certainly the public more broadly, when it comes to international conflict.

This has had historic significance. In 1981, the Labour leader Michael Foot argued that parliament should be able to rule on decisions that risked deepening the conflict with Argentina over the Falklands Islands. Margaret Thatcher refused, claiming it was the ‘inherent jurisdiction of the government’ to decide how to conduct the conflict using prerogative powers. Parliament could ‘pass judgment on the government’ when the conflict was over, she said.

The prerogative powers even influence how parliament is permitted to discuss going to war. In 1999, the Labour MP Tam Dalyell put a bill before parliament seeking to ensure that any declaration of war with Iraq would have to win the approval of MPs. The bill could not even be debated because any proposed limitation of prerogative power needs the consent of the queen before being discussed. The Royal Prerogative even forbids MPs from debating the future of the monarchy without the queen’s consent.

Democrats have, throughout history, objected to the use of prerogative power. Tony Benn understood the undemocratic nature of these powers when he described them as the ‘final guarantee that democratic decisions taken by the parliament and the people could never be allowed to undermine the hierarchical and semi-feudal system we have’. He pointed out that these powers protect certain government decisions from public influence.

This is why removing these anachronistic powers would strike a blow for democracy. It would make it clear that power is only ever exercised in the name of the people, not the monarch. It would bolster parliamentary sovereignty over the power of the Crown. In Brexit Britain, we should finish the work of the 17th-century English radicals and finally bring an end prerogative powers – for good.

Luke Gittos is a spiked columnist. His new book, Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, is published by Zero Books. Order it here.

Picture by: Getty.

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

Comments

Bob Cook

8th August 2019 at 9:50 pm

The trick with royal prerogatives is that they probably dormant powers that exist only on paper these days. The 1975 Australian constitutional crisis, which was precipitated by a Governor-General’s use of royal prerogative to dismiss a prime minister, shows what can happen when a royal prerogative us used to accomplish something the political system is not ready to accomplish otherwise. The long-term result in Australia has been that no Governor-General would think of exercising a royal prerogative today. It is conceivable that a monarch could decline to endorse an instrument exercising a royal prerogative in order to circumvent the established political process — simply because doing so could foreseeably result in the end of the monarchy over the long term.

Peter Gardner

1st August 2019 at 12:42 am

Luke Gittos runs through a number of circumstances in which the Royal Prerogative has been used or, in his opinion abused. He omits one altogether: a rotten or rogue parliament, which is precisely what we have now and which we cannot remove because the Royal Prerogative to prorogue parliament has been severely curtailed by the Fixed Term Parliaments Act 2011, a pernicious piece of Remainerism by Clegg and Cameron. We currently have a bunch of anti-democratic MPs sitting in Westminster who have undermined the government’s negotiations with the EU and done all they can to subvert and block Brexit in opposition to the result of a referendum. Worse, they do this after being elected on a promise of respecting that result and delivering Brexit. And of course they blame the result of their actions on the minority of MPs who are trying against the odds to stand up for what the electors voted for. Mrs May’s government was complicit in this.
Now, at last, we have a government that is on the side of the electorate. But Parliament is now setting itself against both the government and the electorate. Now is the time for the Queen, who I see as the last recourse of ‘her people’ to step in, on the advice of her privy council, prorogue parliament and direct the government to hold a general election so that her people may return a parliament that will more truly represent them.
A second area where Luke Gittos is wrong is in defence. What the average MP knows about defence and the armed services can be written on the border of a postage stamp. They are really not competent to make a decision on going to war. Half of them don’t even know which countries are a threat. Corbyn believes Hezbollah need our help and would probably have set up the Army as allied to the IRA. Mrs May thinks it OK to make UK dependent on China for nuclear energy and the 5G broadband internet and much of our telecoms. And she fired the Defence Secretary who opposed her decision, accusing him of leaking it to the media, a matter, I would have thought, is very much in the public interest to know. Meanwhile China lays claim to the South China Sea in order to exploit one of the largest natural gas reserves in the world and breaches international law with impunity, and the people of Hong Kong, whom UK promised to protect can go hang because she has allowed China to grab UK by the short and curlies.
There are too many MPs and many are on the side of the country’s enemies. The suggestion that this lot should be deliberating on all the sensitive information relevant to a declaration of war is insane. They are not fit for this purpose, pace The Right Hon Jacob Rees-Mogg, Esq., M.P.

Hana Jinks

1st August 2019 at 3:37 am

Corbyn and May should be tried for their treasonous sympathies. 5G is a trojan-horse technolgy.

Winston Stanley

31st July 2019 at 9:26 pm

The “queen” does not stay out of politics, she intervenes when the establishment wants her to, as she did with the Scottish independence referendum in 2014. She cannot have it both ways, either she is above politics or she is not, and the reality is that she is not, so we should stop pretending otherwise.

The monarchy is tolerated, and the establishment promotes it in the MSM, on the supposition that it is above politics. In fact it is a weapon that the state uses to secure its own interests and the status quo, even with direct interventions when it suits the state.

The state conspires behind closed doors to use the “queen” to intervene in political matters while pretending that she is not, as in 2014. The state deceives the public to use her to sway political affairs. Her supposed political independence is a lie and a deception of the public.

> Queen’s remark on Scottish independence was ‘deliberate intervention’ in referendum, book claims

An apparently spontaneous remark by the Queen ahead of the Scottish independence referendum was “a deliberate last-minute intervention” designed to persuade people to vote no, according to the latest extracts from Lord Ashcroft’s controversial biography of David Cameron.

The book, Call Me Dave, which was written with journalist Isabel Oakeshott, describes how the Prime Minister suffered sleepless nights and his wife Samantha’s hair started falling out as he became increasingly worried that the pro-independence camp might win.

It describes a “strained” breakfast at Balmoral Castle with the Queen, who pointed to a newspaper headline saying: “Yes vote leads in Scots poll.”

Mr Cameron later called his pollster, Andrew Cooper. “He was very worried. It was the first time he was seriously contemplating: s***, we might lose,” Mr Cooper said.

“Inside Whitehall, there were discussions on whether she could somehow speak out against Scottish independence while remaining within the constitutional boundaries of neutrality,” it says.

“Under a cloak of secrecy, the Cabinet secretary, Sir Jeremy Heywood, and the Queen’s private secretary, Sir Christopher Geidt, held talks to work out how she might express her concerns in a suitably coded way. The result was a remark overheard after a Sunday service in Crathie Kirk, the small church that the Royals attend when staying at Balmoral.

“‘I hope people will think very carefully about the future,’ the Queen was reported to have said — to the delight of the No camp.

“The carefully chosen words were no accident. Her supposedly off-the-cuff remark was a deliberate last-minute intervention — and it left no one in any doubt about which side she was on. Cameron was undoubtedly deeply grateful.”

Mr Cameron feared he would have to resign as Prime Minister, but also that he would be remembered for one thing alone. (The Independent)

Steve Roberts

31st July 2019 at 6:25 pm

Excellent piece from Luke Gittos, detailed, historical and pertinent. Yet another piece in this superb series that anyone who considers themselves a democratic should study and apply critical thought to. As with other pieces the dominant theme is who rules, where does political power reside, who has any authority to check or balance our political decisions and power. Do not be afraid of power, not ours, it is the anti democratic others we should be afraid of. Remember the golden rule, daily been self exposed by the established order now, they will stop at nothing to thwart democracy, the Royal Prerogative just been one more piece in their armoury. For those that casually claim this is just an anachronistic matter irrelevant to contemporary society, there is a simple answer to that, if it is a worthless, useless and ineffective appendix that can do no harm then remove it to the dustbin of history entirely, hands off our democracy. The clue is in “our”

Linda Payne

31st July 2019 at 3:29 pm

A lot of people think that having a monarchy protects us from dictatorship but the RP is just that and the real reason the monarchy is maintained

Alison Houston

31st July 2019 at 2:20 pm

The prerpgative powers are not the remains of our ‘unwritten constitution’ they are part of the written part of our constitution, the Declaration of Rights of 1688, which pertains in perpetuity, having first been Common Law, which trumps Parliamentary Law yet enacted as Parliamentary Law the following year 1689, along with The Coronation Oath Act. The Declaration of Rights is largely a reaffirmation of Magna Carta and includes also some aspects of The Petition of Rights of 1688.

The Crown in the context of this prerogative is the people.

Mr Luke Gittos, you should get in touch with John Bingley, the Constitutional Researcher and expert and gain a proper knowledge of this subject, rather that basing your call for the ending of an ancient protection that has served the Kingdom well for centuries.

But first you can watch his detailed and clear explanation of how the system works here:

https://www.youtube.com/watch?v=GwfgtZ-SC-4&t=4s

Alison Houston

31st July 2019 at 2:21 pm

*Petition of Rights of 1628

James Hamilton

31st July 2019 at 2:38 pm

I agree. The current system works well. It provides a limit to the ambitions of politicians and reminds them that they are not the real authority in this country. The people, an abstract concept, reified in the monarch who serves them is sovereign. The alternatives are options from countries who elect their presidents, and I don’t see anything I would like to replace the monarchy with there.

Hana Jinks

31st July 2019 at 12:57 pm

So the monarchy is a protection-racket then?

James E Shaw

31st July 2019 at 11:37 am

So, is Spiked going to thank Gina Miller for launching an action against the government for the use of the Royal Prerogative?

By the way, balls to the idea of a People’s Democracy. This nasty form of Stalinist government, direct democracy, does little to enhance liberty. So called People’s Democracies like France and the US were lousy in advancing liberty. Women in France did not get the vote until 1944, slavery was not abolished in the US until 1865.

Jerry Owen

31st July 2019 at 11:33 am

Amin
I am not a fan of our present parliament due to it’s riding roughshod over it’s people. However we do have the right to deselect politicians we do not like and governments we do not like . I think much of the problem is that many of our politicians do not need income from being a politician. they are rich in their own right which means that they only feel the need to reflect their own views and presumably that which benefits their own pockets. Lobbyists in a way.
Should a politician rely solely on the public purse for his / her income we might see more representative democracy. For example if a constituency voted one way in a public referendum , say leaving the EU for example and the sitting MP campaigned to remain and he was reliant on the public purse he may be inclined to represent his constituents. A radical thought I know ! Quite how we could achieve a representative parliament because it relies solely on public money would need more investigation. We would also have to stop politicians from gaining lucrative employment after their career in politics is aver having feathered their nests, this would be difficult. Politics is the playground of the rich, and that clearly needs to be changed.

Jerry Owen

31st July 2019 at 11:34 am

* After * not aver.

Peter Gardner

1st August 2019 at 12:55 am

“However we do have the right to deselect politicians we do not like and governments we do not like.”
Deselected MPs are still MPs. Some even remain members of the party even thought the local party association has deselected them.
We don’t have the power to remove governments we don’t like. We have that opportunity only when that government and parliament between them decide to allow it and they can delay it for a full five years. The electorate has absolutely no means of calling a general election at a time of its choosing no matter how disastrous the government and parliament. That is the situation we have had since Mrs May became PM. Parliament is rotten and we cannot get rid of it before June 2022 unless it decides for itself to stand down and face the electorate. Most would lose their seats so it is very unlikely before June 2022.

Jerry Owen

1st August 2019 at 4:51 pm

The point | make is that we can remove a government after five years, I don’t support the system but clarify my point.

Jim Lawrie

31st July 2019 at 10:08 am

A more realistic aim than abolishing the very popular monarchy.

Will remainers, convinced of their own innate superiority, now to warm to the embodiment of that idea in the monarchy? They certainly put their weight behind The Lords.

Jerry Owen

1st August 2019 at 4:52 pm

‘There is no support for the abolition of the monarchy’
I didn’t say there was. Further to accuse me of grandstanding is pure tosh.
I am expressing my view .

Charles Stuart

31st July 2019 at 4:43 am

But what if the people had a vote and didn’t want the sort of democracy you want, a democracy devoid of any ties to the culture and history of the country?
The best way to ensure ”democracy” is to reduce government to a bear minimum. Put everything you can into the private sphere and we all have the power to rule ourselves and influence others, without the creaky mechanism of government making things difficult.
Ask yourself this: would you rather live in a country where you could achieve anything you were capable of achieving or live in a ”democracy” where the majority was intent on passing laws on every aspect of life? Because that is what you will get with a ”perfect democracy”, a huge government that will turn into a tyranny.
The Royal Prerogative is actually far more beneficial than Parliamentary rule, because the Monarch can at least keep Parliament in check. What too many people forget is that once a government is elected it usually has 5 years of absolute power which isn’y beholden to any democratic control whatsoever. Yes, the government can be turfed out at an election, but most of the time the majority of its measures will remain on the statute book. The majority of those measures will be things that no-one actually voted for or properly understand. Furthermore both sides of the House will probably have agreed on most of the measures anyway. Thus I would seriously question the idea that somehow ”democracy” is served by allowing Parliament’s power to be absolute.
The greater problem is not determining on how the government is selected, but on determining the limits of government.

Jerry Owen

31st July 2019 at 8:23 am

Charles Stuart.
I believe the smaller the government the better for the population as a whole as you say. However then saying that we need the Monarchy to keep parliament in check appears to be ‘having your cake and eating it ‘.
Surely a smaller government would leave a void that the Monarchy would simply fill.
We have been fortunate in that the present Queen and indeed the monarchy overall in my life time has in fact stood well back form involvement in politics.
However I have over the last few years become an anti Monarchist solely due to the ramblings of the eco loon Charles and the ever increasing political witterings from Merkel. I have no idea of the machinations of the routes to becoming Queen but can you ever imagine Queen Merkel staying out of politics and not using her position of unelected power to shape the country in her own image.. just as surely as Charles would ?
For me although I agree with this article which means 3/3 for Spiked , I would prefer total abolition of the monarchy.

Jerry Owen

31st July 2019 at 11:50 am

That will of course be Markle .. not the other one !

Jim Lawrie

31st July 2019 at 3:52 pm

There is no support for abolition of the monarchy and such an utterance is just grandstanding.

The “praise be” for the House of Lords’ role in blocking Brexit has won them support, as it has The Supreme Court (formerly called The House of Lords). The monarchy are part and parcel of that. Mr Gittos’ proposal at least has the chance of a hearing throughout the land.

Amin Readh

31st July 2019 at 1:26 am

Okay. It’s a good piece. I paid attention and I think I understand the well-made argument. But I disagree on two seemingly divergent points. You are heading towards calling for the dissolution of the monarchy, then you should just do that. Then we can confer such powers on an elected president and there is a stable division of power.

Just to take away this power from the Monarchy? Then no. Unchecked powerful parliament surely leads to even more authoritarianism. I don’t see how democracy is best served that way either.

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