Tag Archives: Anne Twomey

What is constitutional monarchy, and what is its role in the UK? 

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Constitutional monarchies are governed by elected parliaments and governments; but a monarch remains head of state and plays various important roles. Lisa James and Robert Hazell explain the UK monarchy’s constitutional role, its impact, and the questions that would need to be addressed should the UK ever decide to replace it. 

Background 

A constitutional monarchy is a system in which the head of state is a monarch, but that person does not rule the country. Governing is undertaken instead by an elected parliament and government. In the UK, the monarch’s involvement in politics has gradually diminished over the centuries, to the point where they effectively no longer exercise political power.  

The UK is not alone in having a constitutional monarchy. There are seven other monarchies in Europe, which are very similar to the UK system. The main difference is one of size: the UK has a much larger population than most European monarchies, and a larger royal family to service it.  

The UK’s monarchy is also uniquely international: the British monarch is head of state for 14 other ‘realms’ such as Canada, Australia, Jamaica and Papua New Guinea. 

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‘Palace letters’ show the Queen did not advise, or encourage, Kerr to sack Whitlam government

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Four decades after the dismissal of the Whitlam government, letters between the Palace and the Governor-General of Australia have been made public. Anne Twomey explains that they show the Queen acted properly, neither advising nor encouraging the government’s dismissal, recommending simply that he obey the Australian Constitution.

For more than four decades, the question has been asked: did the Queen know the governor-general, Sir John Kerr, was about to dismiss the Whitlam government, and did she encourage or support that action? The release of the ‘palace letters’ between Kerr and the palace can now lay that question to rest. The answer was given, unequivocally, by the Queen’s private secretary, Sir Martin Charteris, in a letter to Kerr on November 17 1975. He said:

‘If I may say so with the greatest respect, I believe that in NOT informing The Queen what you intended to do before doing it, you acted not only with perfect constitutional propriety but also with admirable consideration for Her Majesty’s position.’

Certainly, Kerr had kept the palace up to date with the various developments in Australia. While governors-general usually communicate with the Queen only three or four times a year during ordinary times, it is common during a crisis for updates on the political situation to be made every few days – particularly if there is a risk of the Queen becoming involved or the exercise of a reserve power drawing the palace into the crisis.

In 1975, there were multiple issues that might have drawn the palace into the crisis. First, there was the question of whether Kerr should exercise a reserve power to refuse royal assent to an appropriation bill that had been passed by the House of Representatives but not the Senate. Fortunately, Whitlam dropped this idea, so that controversy disappeared.

Then there was the question of whether state premiers would advise state governors to refuse to issue the writs for a half-Senate election, and whether Whitlam would then advise the Queen to instruct the governors to issue the writs. This didn’t happen either, because Whitlam did not get to hold his half-Senate election. But the prospect was enough to worry the palace. Continue reading →

Should we codify the royal prerogative?

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com.google.Chrome.vxw6lk.jpgThe recent controversy about the unlawful attempt to prorogue parliament and the judicial review that followed has given rise to renewed calls for the codification of the royal prerogative or the enactment of a written constitution. Anne Twomey argues that there are benefits to a looser prerogative power, and that experience in other countries has shown that codification should be undertaken with caution.

The recent controversy about the prorogation of parliament and the judicial review of its exercise in Miller No 2 (also known as Cherry/Miller) has again given rise to calls for the codification of the prerogative or the enactment of a written constitution.

A written constitution is not necessarily an antidote for ambiguity or interpretative discretion. The same issues that arose in Miller No 2 could also arise under a written constitution. For example, section 5 of the Australian Constitution confers upon the Governor-General of Australia the power to prorogue the federal parliament. In doing so, however, it does not delineate the scope of the power to prorogue and whether there are any internal limits on it. The term ‘prorogue’ would have to be interpreted in its historical context, as a prerogative power, and in a manner that is consistent with the principles that are derived from the constitution, including the principles of responsible and representative government

So what would happen if an Australian government requested the Governor-General to prorogue parliament for a significant period, in circumstances where it appeared to have lost confidence and to be seeking to frustrate the ability of parliament to fulfil is legislative and accountability functions? It is likely that Australian courts would face exactly the same issues as the UK Supreme Court did in Miller No 2, regarding justiciability, the scope of the power to prorogue and the application of fundamental constitutional principles. Simply setting out the existing power in legislation or a written constitution does not, of itself, resolve all questions as to its application.

While most prerogative powers have now been abrogated by legislation, there is usually a good reason while those that have survived as prerogative do so. It may be because of the need to exercise them in a quick and decisive fashion. Sometimes, codifying prerogatives in legislation, particularly where prescriptive conditions are included, can exacerbate problems about their use. Disputes are likely to arise about the interpretation of the application of the conditions, courts are likely to become involved in enforcing them, and the delay involved in litigation is likely to exacerbate any political crisis. Continue reading →

Six constitutional questions raised by the election of the new Conservative leader

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professor_hazell_2000x2500_1.jpgmeg_russell_2000x2500.jpgIn less than one month, Conservative Party members will elect a new leader from a two-man shortlist. Under normal circumstances, what happens next would be obvious – Theresa May would resign and the winner would be called on by the Queen to form a government and take office as Prime Minister. However, with the Conservatives lacking a parliamentary majority and normal party loyalties skewed by Brexit, the current scenario is far from normal. Robert Hazell and Meg Russell identify six key constitutional questions that the Conservative leadership election raises for the winner, his party, the Palace and parliament.

With the Conservative Party leadership contest in full swing, the expectation is that Britain will soon have a new Prime Minister. But the process has opened up some significant constitutional controversies. This is the first time that party members will potentially directly elect a new Prime Minister, and this innovation is happening at a time not only of minority government, but with the governing party severely divided. Some senior Conservatives have signalled that they might go so far as to vote no confidence in a new leader who sought to deliver a ‘no deal’ Brexit, while some candidates in the race suggested a possibility of proroguing parliament to avoid MPs blocking a ‘no deal’. In this post we address six of the most burning constitutional questions raised by these controversies.

1. Will the new leader of the Conservative Party be appointed Prime Minister?

Not necessarily. The key test is whether the Conservatives’ new leader is able to command the confidence of the House of Commons. This is how it is expressed in the key paragraphs of the Cabinet Manual:

2.8    If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.

2.9    … In modern times the convention has been that the Sovereign should not be drawn into party politics, and if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine and communicate clearly to the Sovereign who is best placed to be able to command the confidence of the House of Commons. As the Crown’s principal adviser this responsibility falls especially on the incumbent Prime Minister …

2.18    Where a Prime Minister chooses to resign from his or her individual position at a time when his or her administration has an overall majority in the House of Commons, it is for the party or parties in government to identify who can be chosen as the successor.

Clearly none of these paragraphs quite covers the present unusual circumstances: Prime Minister Theresa May is on course to resign as an individual (2.18), rather than on behalf of the government (2.8), but the governing party does not have an overall Commons majority. Two things however are clear in either case. First, that the new Prime Minister must be the person most likely to be able to command the confidence of the House of Commons, and second, that it is the responsibility of the politicians to determine who that person is, in order to protect the Queen from the political fray.

Whether the new Conservative Party leader can command parliamentary confidence is clearly in some doubt given comments from Conservative MPs that they may not be able to support the new government. The government only has a majority of three (including the DUP), so only a very few rebels is enough for it to lose its majority. The parliamentary arithmetic is not necessarily that simple, because some pro-Brexit Labour rebels could conceivably decide to support the government. But the number of Conservative rebels is potentially large enough. Continue reading →