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 Over the years these have been overlain and superseded by statute, and most powers have transferred to ministers.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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The problem(s) of House of Lords appointments

Lords appointments are back in the news, with rumours of resignation honours from Boris Johnson, and even possibly Liz Truss. The current unregulated system of prime ministerial patronage causes multiple problems, and new Constitution Unit polling shows widespread public demand for change. Meg Russell reviews the problems and possible solutions, in the context of a bill on Lords appointments due for debate tomorrow. She argues that small-scale changes are now urgently required, and urges party leaders to embrace them – whatever their longer-term aspirations for Lords reform.

Recent weeks have seen revived controversies about appointments to the House of Lords. These include concerns about Boris Johnson’s long-rumoured resignation honours list, now joined by concerns that Liz Truss may want resignation honours of her own after just 49 days as Prime Minister. While the personalities may be different, controversies over Lords appointments are nothing new. The central overarching problem is the unregulated patronage power that rests with the Prime Minister. As this post highlights, a series of other problems follow: regarding the chamber’s size, its party balance, the quality of candidates appointed, the chamber’s reputation and widespread public dissatisfaction with the system.

An end to the Prime Minister’s unfettered appointment power is long overdue. Tomorrow a bill will be debated in the Lords aiming to tackle some of the problems, but as a backbench bill it is unlikely to succeed. Its contents nonetheless provide a useful (though incomplete) guide to the kind of important small-scale changes needed. Both main party leaders now need urgently to propose short-term packages of their own.

The problem of the size of the Lords

Much attention has focused in recent years on the spiralling size of the House of Lords. The current system places no limits whatsoever on the number of members who may be appointed to the chamber by the Prime Minister. Most – though not all – prime ministers have appointed unsustainably. Particularly given that peerages are for life, over-appointment drives the size of the chamber ever upwards. This is a historic problem, visible throughout the 20th century. The Blair government’s reform of 1999 brought the size of the chamber down (from around 1200 to just over 650). But since then it has risen again. Two reports from the Constitution Unit – in 2011 and 2015 – analysed this problem, calling for urgent action. In 2016 the Lord Speaker established a cross-party Committee on the Size of the House, which made recommendations the following year. Centrally these included restraint by the Prime Minister based on a ‘two-out-one-in’ principle – so that only one new peer would be appointed for every two who left, until the chamber stabilised at 600 members. These principles were endorsed by the Commons Public Administration and Constitutional Affairs Committee, and respected by Theresa May. But Boris Johnson ignored them. In 2021, the Lord Speaker’s Committee lamented how he had ‘undone progress’ achieved by his predecessor.

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How far did parliament influence Brexit legislation?

Parliament’s role in the Brexit process has been the subject of widespread controversy among politicians, commentators, and experts. This makes it important to understand exactly what kind of influence parliament wielded in that period. Tom Fleming and Lisa James shed new light on this question by summarising their recent article, Parliamentary Influence on Brexit Legislation, 2017-2019, as published in ‘Parliamentary Affairs’.

Parliament’s role in the Brexit process was – and remains – highly controversial. But despite this controversy, there is widespread agreement that parliament was unusually influential during this period, and particularly during the hung parliament that lasted from 2017 to 2019.

This verdict is largely based on parliament’s high-profile impact on the Brexit negotiations, where MPs famously torpedoed Theresa May’s exit deal, and delayed the UK’s eventual departure from the EU on multiple occasions. But parliament also considered a raft of important Brexit-related legislation, which aimed to unravel the UK’s membership of the EU and create new domestic regulatory frameworks. This legislation has been less studied, but is crucial to our understanding of the relationship between parliament and government in this period.

Our recent article therefore explored the extent and nature of parliament’s influence on this Brexit-related legislation. We did so by analysing the parliamentary passage of the 13 Brexit-related bills introduced in the 2017-19 parliament, including the fate of over 3000 proposed amendments.

More specifically, we explored three different mechanisms by which parliament can influence government legislation: passing non-government amendments; forcing government concessions; and influencing the government’s approach through ‘anticipated reactions’. For each mechanism, we investigated its prominence between 2017 and 2019, and compared this to evidence from earlier periods.

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The constitutional causes and consequences of the Truss-Kwarteng budget crisis

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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Examining last session’s record-breaking number of government defeats in the House of Lords

In the 2021-22 session of parliament, government defeats in the House of Lords reached record levels. Sam Anderson argues that two key factors combined to drive this phenomenon. First, the Johnson government pursued a controversial legislative agenda. Second, it seemed in some cases unwilling to compromise where evidence suggests that previous governments would have done so.

There were numerous examples throughout Boris Johnson’s premiership of his government’s rocky relationship with parliament. One recent manifestation – noted elsewhere – was that there were an unprecedented 128 government defeats in the House of Lords in the 2021-22 parliamentary session. This led some government supporters to suggest that the Lords has become a ‘House of opposition’ that ‘views themselves as there to obstruct’ the government. But is this assessment fair?

The Constitution Unit’s tracking of when and on what topics governments are defeated in the House of Lords offers key insights. With data stretching back to 1999, we can compare such defeats between different governments over time. This blog uses such data to dig deeper into the 128 defeats, seeking to understand what might have caused them. First, I argue that a large number of bills covering topics that have long animated the Lords was a factor. Second, I suggest that pressures which have in the past increased the chances that the government would make some sort of concession to the Lords had less effect under Johnson.

Lords defeats over time

The Constitution Unit’s Meg Russell – who now serves as its Director – began recording defeats in 1999, when the House of Lords Act removed most hereditary peers, breaking the Conservative dominance of the chamber. Since then, no single party has had a majority in the Lords, making governments of all parties more vulnerable to defeats there than in the Commons. Votes are of course just one form of parliamentary influence, but the Lords’ ability to defeat the government has been an important source of institutional power.

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