Reforming the royal prerogative  

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 Over the years these have been overlain and superseded by statute, and most powers have transferred to ministers.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.

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Boris Johnson’s constitutional legacy

Boris Johnson’s premiership is expected to end on 6 September, when it is anticipated that he will offer his formal resignation to the Queen at Balmoral and make way for the winner of the Conservative Party leadership election. Lisa James demonstrates that his time in office has been marked by an impatience with constitutional checks and balances and a willingness to depart from convention. She argues that his legacy risks being the normalisation of such behaviour.

What have been the major issues and challenges during Johnson’s premiership? 

Constitutional controversy has been a consistent feature of Boris Johnson’s premiership. His first months in office, amid the turmoil and acrimony of the late-2019 Brexit deadlock, were marked by the unlawful prorogation of parliament, suggestions that he would defy the law, and briefings from allies that if the Commons withdrew its confidence he would ‘dare the Queen to sack him’.

Thankfully, the monarch was not dragged into Johnson’s resignation this summer. But the Prime Minister stepped down only after a tense standoff with his own party, as it forced him from office over a series of standards-related scandals. The most prominent of these, partygate, will outlast Johnson’s premiership – with the Privileges Committee’s investigation into whether the Prime Minister misled parliament ongoing.

Though the intervening years perhaps lacked such obvious constitutional fireworks, these topics were never off the agenda. The Johnson government’s reform programme, and behaviour, often provoked controversy; the COVID-19 pandemic raised questions about how the country should be governed in times of crisis; and the fallout from Brexit heightened tensions over the territorial constitution, as discussed elsewhere on this blog – particularly in Northern Ireland.

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Monitor 81. Johnson falls; what’s next for the constitution?

Today, the Unit published the 81st edition of Monitor, which provides analysis of the key constitutional news of the past four months. In this post, which also serves as the issue’s lead article, Meg Russell and Alan Renwick reflect on the collapse of Boris Johnson’s government, increasing concerns about ministerial and parliamentary standards, and continuing doubts about the future of the Union.

The preoccupying question in UK politics over recent months increasingly became when – rather than whether – the Prime Minister would be forced from office. In April, Boris Johnson was fined for breaching restrictions on social gatherings during lockdown, and the Commons referred him to its Privileges Committee for allegedly misleading parliament. In May, the Conservatives suffered steep losses in the local elections, and Sue Gray’s official report into ‘partygate’ was finally published, concluding that the ‘senior leadership at the centre, both political and official, must bear responsibility’ for the culture of disregard for the rules that had emerged. In June, Johnson survived a vote of no confidence among his MPs and the loss of two parliamentary by-elections, followed by the resignation of the Conservative Party Co-Chair, Oliver Dowden. But the resignation of Deputy Chief Whip Chris Pincher in early July, and Number 10’s bungled reaction to it, finally brought the Prime Minister down.

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What Happens if Boris Johnson loses the confidence of his Cabinet, or his MPs?

Boris Johnson’s time in Downing Street appears to be in its final days, but how it will end remains unclear. Robert Hazell examines the possibilities. How long will a leadership election take? Could there be a caretaker Prime Minister? What happens if Johnson tries to call a snap general election?

If Boris Johnson loses a confidence vote among Conservative MPs, he is not able to stand again. Any other Conservative MP can then stand for the party leadership. How long it will take for the party to elect a new leader will depend on the number of candidates standing, and whether the vote goes to a second stage ballot of all party members.  Party rules prescribe that Conservative MPs vote initially in a series of ballots to select two candidates, who then go forward to a postal ballot of all party members for the final decision. In 2005 it took two months for David Cameron to be elected leader, defeating David Davis in the postal ballot. In 2019 it took six and a half weeks for Boris Johnson to be elected, defeating Jeremy Hunt. It therefore seems unlikely that we will know who is the new Conservative leader (and Prime Minister) until September. But when Cameron announced his resignation in June 2016, it took just 17 days for Theresa May to emerge as the new leader, because Andrea Leadsom stood down as the second candidate in the postal ballot.

Time is being finally called on Boris Johnson’s premiership.  The initial trickle of ministerial resignations has become a steady stream; a delegation of Cabinet ministers has reportedly called on him to resign; if he doesn’t take the hint, the 1922 Committee seems likely to hold an early second confidence vote in his leadership.   But what will happen if he does resign, or if he loses the confidence of a majority of Conservative MPs?  How long might it take for the Conservative party to elect a new leader, and how will the country be governed in the meantime?

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