Tag Archives: proroguing parliament

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 Over the years these have been overlain and superseded by statute, and most powers have transferred to ministers.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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The constitutional causes and consequences of the Truss-Kwarteng budget crisis

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Within weeks, Liz Truss’s premiership was plunged into economic and political turmoil due to Kwasi Kwarteng’s ‘mini budget’. But this crisis, suggests Meg Russell, has distinctly constitutional roots. Building on Boris Johnson’s legacy, Truss chose to sideline expert officials and regulators, and shut out her own MPs. The consequences that have since befallen her are a compelling advertisement for respecting – and rebuilding – appropriate constitutional checks and balances.

The Conservative Party conference, indeed the entirety of Liz Truss’s new premiership, has been severely destabilised by the market reaction to Chancellor Kwasi Kwarteng’s ‘mini budget’. Far from securing Truss her desired reputation for acting on the energy crisis and boosting the economy, and a positive bounce in the polls, Kwarteng’s 23 September ‘fiscal event’ saw the pound plunge, lenders withdraw mortgage products, and Labour achieve record poll leads. Faced with a mass rebellion by Conservative MPs, Kwarteng performed a U-turn on abolition of the top rate of income tax, while other parts of the package may face further such trouble ahead.

Fiscal policy is well beyond the usual scope of the Constitution Unit blog, or of this author. But the extent to which the unforced economic and political crisis built on foundations of poor constitutional and governance practice is striking. Boris Johnson played fast and loose with many constitutional norms, and Liz Truss seems quickly to have followed suit. But her now catastrophic position – with some Conservative MPs calling for the Prime Minister’s removal after less than a month in the job – demonstrates just how shortsighted and dangerous such behaviour can be.

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The UK’s constitutional norms and standards took a severe battering under Johnson: Labour should pledge to restore the system

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There is no guarantee that the Johnson government’s dismal record on safeguarding our democracy will be improved upon by the new Prime Minister, Liz Truss. This creates big opportunities for Labour to offer a real alternative by restoring integrity and accountability to politics, writes Meg Russell.

Concerns about honesty and integrity and the erosion of constitutional norms were central to Boris Johnson’s dramatic downfall. The new Prime Minister’s attitudes in this area remain largely untested – though the omens during this summer’s leadership contest were not good. Meanwhile, public opinion research suggests that voters really care about these questions. That presents significant opportunities for Labour.

The charge sheet against Johnson was remarkably long. The journalist Peter Oborne, formerly political editor of the Spectator and a Telegraph columnist, dedicated both a website and a book to chronicling Johnson’s uneasy relationship with the truth. This trait was well known before he assumed the premiership and to an extent ‘priced in’. But the difficulties under his leadership went far wider, covering multiple aspects of integrity in politics and respect for the essential rules and norms that underpin UK democracy. This often put him at odds with regulators and non-political figures holding responsibility for maintaining the system, as well as with senior figures in his own party.

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Boris Johnson’s constitutional legacy

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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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After an unsuccessful legal challenge by All the Citizens and the Good Law Project, where next on WhatsApp use in government?

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Cassandra Somers-Joce and Joe Tomlinson discuss the use of instant messaging technologies within government, arguing that good government does not mean the eradication of such technology from government practice, but that it must be used in a way that is sensitive to the state’s duties to maintain a record.

The last few years have seen several prominent examples of instant messaging technologies – some with the capacity to auto-delete messages – being used within the UK government. Examples ranging from the articulation of the rationale behind the controversial prorogation of parliament to the securing of government medical device contracts during the COVID-19 pandemic have arisen in the press. Instant messaging technologies clearly play an important role in government communication and decision-making. These technologies are seemingly utilised daily across all levels; for instance, the BBC has reported that since November 2020, Prime Minister Boris Johnson has been sent a summary of his ‘red box’, containing prime ministerial business to attend to, via WhatsApp. These reports of high-profile usage have been followed by the emergence of a Cabinet Office policy that arguably encourages the use of self-deleting instant messaging, and research from the Institute for Government that shows divergent policies on this issue across government.

What should we make of these quickly evolving practices? Instant messaging technologies such as WhatsApp undoubtedly have their benefits for public officials, and the effective functioning of government overall. Perhaps most notably, they can enable officials to exchange messages and share information more easily than other systems. However, they create a range of complexities as regards the preservation of the public record, particularly where these technologies are used in place of documented meetings or official email communications. Not least amongst these complexities is that the use of these technologies engages a variety of public law norms related to governmental record-keeping and the disclosure of information. As practices have emerged, it has become increasingly clear that the use of WhatsApp by the UK government may be at risk of being in violation of these public law norms.

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