Tag Archives: Finland

Reforming the royal prerogative  

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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 Over the years these have been overlain and superseded by statute, and most powers have transferred to ministers.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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Parliamentary scrutiny of international agreements should not be limited to legally binding treaties

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Last week, the Constitution Unit published a blogpost which posed five key questions for the Conservative leadership contenders, one of which focused on rebuilding parliament’s scrutiny role. In this post, David Natzler and Charlotte Sayers-Carter argue that such scrutiny should include telling parliament about politically significant international agreements it has made and allowing for oversight and the expression of dissent.

On 11 May Prime Minister Boris Johnson signed bilateral security agreements with Sweden and Finland. At that time both countries were actively considering applying for membership of NATO, which they did together a week later, on 18 May. Once objections by Turkey to their membership had been dealt with, NATO agreed to these applications at its June meeting in Madrid. Now they have been admitted, the necessary amending Protocols to the North Atlantic Treaty will be laid before parliament. Under the terms of Part 2 of the Constitutional Reform and Governance Act 2010 (CRaG), it is usual practice that the government can ratify a Protocol unless there has been a parliamentary objection within 21 sitting days. NATO expanded to include the Baltic states in 2004, Montenegro in 2016 and North Macedonia in 2019. On none of these occasions was positive assent given by parliament; in the absence of dissent within 21 days of their laying, the Protocols were duly ratified. However, viewing the current circumstances as an ‘exceptional case’ to which the 21 day requirement can be disapplied under section 22 of CRaG, the government intends to proceed with ratification before parliament breaks for summer recess.

The 11 May agreements may have looked like stopgap measures, an interim bilateral version of the regime of multilateral mutual protection offered under Article 5 of the NATO treaty, but the Prime Minister explicitly said that they were not, and the leaders of both countries went out of their way to assert that the agreements would make their countries more secure. Although appended to both agreements were confirmations that they did not give rise to legally binding commitments under international law, they have been described as ‘solemn declarations’. While the UK might very well have been expected in any event to have come to the assistance of either country in an emergency if a request had been made, the situation following the signing of these agreements was different, in that there was a real prospect that British armed forces could have been actively engaged in coming to the assistance of these hitherto neutral countries as a fulfilment of these agreements.

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