The Brexit process raised questions about how – and in what areas – the royal prerogative should operate. Following a lengthy project, which has resulted in a new book on the subject and a Unit report – published today – on options for reform, Robert Hazell explains why the prerogative matters, and how it might be reformed to strike a better balance between parliament and the executive.
The royal prerogative has long been a mystery to most observers. I have now produced a book Executive Power: The Prerogative, Past, Present and Future to help demystify it. It was written with my former researcher (now a barrister) Tim Foot, and covers the whole range of prerogative powers, from going to war and ratifying treaties, appointing and dismissing ministers, regulating the civil service and public appointments, to the grant of honours and pardons and the issue of passports. The book’s 19 chapters provide a comprehensive guide to the operation of the prerogative – past, present, and future – together with suggestions for reform.
Working with us was another researcher, Charlotte Sayers-Carter, and Charlotte and I have distilled the key findings of our book into a much shorter report, Reforming the Prerogative. It selects just five powers, to illustrate the scope for reform through codification in statute, soft law, or by clearer and stronger conventions. This blog offers edited highlights from the book and the report, to explain why the prerogative matters; to illustrate this with a few prerogative powers; and to suggest ways in which it might be reformed.
What is the prerogative?
The prerogative derives from the original executive powers of the Crown. Over the years these have been overlain and superseded by statute, and most powers have transferred to ministers. The monarch retains the power to summon, dissolve and prorogue parliament; to grant royal assent to bills passed by parliament; to appoint and dismiss ministers. The main prerogative powers in the hands of ministers are the power to make war and deploy the armed forces; to make and ratify treaties; to conduct diplomacy and foreign relations; to grant peerages and honours; to grant pardons; to issue and revoke passports.
Why the prerogative matters
Until Brexit the prerogative had seldom been the subject of much political attention. Then Brexit came and shone a spotlight on obscure powers which suddenly became the talk of parliamentarians and newspaper leader writers. There was fierce debate over whether Article 50 could be triggered without an Act of Parliament, spilling over from parliament into the courts. This was followed by wild speculation that the Queen might be advised to withhold royal assent from delaying legislation passed against the government’s wishes. Then there was speculation (which turned out to be less wild) that Boris Johnson might prorogue parliament to prevent it heading off a no-deal Brexit. And finally, there were repeated votes as Johnson sought to find a way round the Fixed-term Parliaments Act 2011 to dissolve parliament and hold a general election.
All four controversies involved different aspects of the prerogative. They raised fundamental questions about the balance of power between parliament and the executive, and the role of the courts. How much power should parliament have to scrutinise and approve (or block) the ratification of treaties, traditionally a prerogative of the executive? Could the government advise the Queen to withhold royal assent from legislation? Was the Queen bound to follow the Prime Minister’s advice to prorogue parliament? And who should decide when parliament is dissolved: the government, or parliament itself?
The underlying issue with all prerogative powers is how much autonomy the executive should have to wield that power; with what degree of supervision from parliament or the courts; or (more rarely) from the monarch. Underlying competing views about executive autonomy are the Whitehall and Westminster views of government. On the Westminster view, the government derives its democratic legitimacy, and authority, from parliament. In the Whitehall view the government derives its legitimacy from the people. The next part of this blogpost examines a selection of individual prerogative powers from this perspective.
Dissolution and prorogation
The Westminster and Whitehall views are exemplified in the debates about dissolving and proroguing parliament. Is it right for the executive to control the sittings of parliament; or should parliament decide when it should sit, and for how long? The Fixed-term Parliaments Act 2011 (FTPA) transferred the power of dissolution to the House of Commons; but in the Dissolution and Calling of Parliament Act 2022 the Johnson government transferred the power back to the executive. This was a retrograde step: giving parliament control over dissolution would remove the risk of challenge in the courts, and protect the monarch from controversy. That controversy nearly materialised with the speculation in July that Johnson might try to call a snap election to face down his rebellious ministers and backbenchers. Similarly, prorogation should be decided by parliament not the government: the UK is one of only two amongst 26 European parliaments in lacking the power to insist on sitting against the wishes of the executive.
The Westminster view would appear to have been strengthened when the Ponsonby Rule, that treaties should be laid before parliament for 21 days before ratification, was codified in the Constitutional Reform and Governance Act 2010 (CRAG). But in reality a weak convention was translated into a weak statute: CRAG has done little to strengthen parliamentary scrutiny. That has recently improved, not through CRAG, but thanks to the House of Lords establishing a new International Agreements Committee. To give its scrutiny extra bite, CRAG could be strengthened to give parliament a veto instead of a power merely to delay ratification; scrutiny should extend to all international agreements, such as the Memorandum of Understanding with Rwanda, and the new security agreements with Finland and Sweden; parliament should be allowed longer than 21 days when required; and parliamentary committees should have power to refer treaties for a debate and vote on the floor of the House.
The war-making power
On the Westminster view, parliamentary approval should be sought before any military engagement. But it has proved difficult to find ways of giving effect to that, when the nature of war is changing so rapidly. The convention that parliament would be given a vote before British forces are deployed was first articulated by Tony Blair in 2003, and confirmed by David Cameron in the 2011 Cabinet Manual. But it has since been called into question by Theresa May ignoring the convention in 2018, when she authorised airstrikes against chemical weapons facilities in Syria. It has also proved difficult for the convention to keep pace with changes in modern warfare, such as drone strikes, cyber warfare, and now large scale military assistance to Ukraine. The Commons Public Administration and Constitutional Affairs Committee (PACAC) concluded that codifying the convention in statute would be too inflexible, and instead recommended codification in a resolution of the House of Commons. But for this to work would require the cooperation of government, to develop a shared vision of the respective roles of government and parliament in initiating and approving military intervention of all kinds.
The case for statutory codification of passports is much stronger. Theyare issued by the Crown under the prerogative. Exemplifying the Whitehall view, the criteria for their issue, refusal or withdrawal are not governed by legislation, but set out in a statement by the Home Secretary. In the most recent statement in 2013 Theresa May explained bluntly:
There is no entitlement to a passport and no statutory right to have access to a passport. The decision to issue, withdraw, or refuse a British passport is at the discretion of the Secretary of State for the Home Department (the Home Secretary) under the Royal Prerogative.
On the Westminster view there should be a statutory right to a passport, as is the case in Australia and New Zealand. An alternative is Canada’s halfway house solution of prerogative legislation (in the Canadian Passport Order 1981). There should also be independent scrutiny, by the Parliamentary Ombudsman or the Independent Reviewer of Terrorism Legislation.
One theme running through all these recommendations is that on the Westminster vs Whitehall view of the constitution, we come down firmly on the side of Westminster (as did the Supreme Court in Miller 1 and Miller 2).Dissolution and prorogation should not be triggered solely by the executive, but subject to a parliamentary vote. The unstable convention about parliamentary approval of military deployment would benefit from being formalised in a resolution of the House of Commons. Parliament needs closer involvement in the negotiation and ratification of treaties. And the rules for the issue and withdrawal of passports should be laid down in statute, not simply declared by the Home Secretary.
Despite recent setbacks, over a longer timeframe the Westminster view has been slowly gaining ground. The narrrative running through our book is of the prerogative gradually becoming more regulated over the last 30-40 years. In the courts as in parliament there has been ebb and flow, but the overall trend has been to make the prerogative more transparent, more accountable, and to reduce the breadth of executive discretion.
Further codification is needed; but codification in statute is not the universal answer. The prerogative is too sprawling and varied to be susceptible to one-size-fits-all solutions. War powers need to be regulated by a more flexible framework than statute can provide. Nor is codification a panacea: it has done little to strengthen parliamentary scrutiny of treaties, because of the weakness of the statutory regime. Nor is codification necessarily more durable: the FTPA was repealed after ten years. Just as with conventions, consensus on the value and content of controls needs to be built if codification is to endure.
For day-to-day supervision of the prerogative we must look to parliament. But for parliament to be effective requires political will and institutional leadership, both of which are in short supply. It also requires the right structures, and resources: such as the recent creation by the House of Lords of dedicated machinery to scrutinise treaties.
About the author
Robert Hazell is Professor of Government and the Constitution at University College London and co-author of Executive Power: The Prerogative, Past, Present and Future and Reforming the Prerogative.