It has often been said that no one should have the right to participate in the legislative process without a democratic mandate. This principle is where the House of Commons and the Government get their political legitimacy. However, without a written constitution, what prevents the Government from getting too much power… and abusing it? In a debate to elect Betty Boothroyd Speaker of the House of Commons, Tony Benn MP famously quipped,
“The power of Charles I has long gone and his successors have no power left, but in that 450 years [sic] state power has grown enormously… all the prerogatives that Charles had are now in the Prime Minister’s hands… Therefore, the divine right of kings is alive and well in the person of the Prime Minister of the day.”
Of course, Mr Benn was concerned about a lack of checks and balances on the executive’s authority. He thought that the Speaker of the House was crucial to providing Parliament the ability to reign in the powers of the Government of the day. While in the same speech, he also noted a contradiction, “Previously, Speakers have been chosen by patronage, nudging and winks, through the usual channels, which are the most polluted waterways in the world.” Even when Speakers do their job impartially and allow the House to fully scrutinize the Government, they can still face retribution. For example, incumbent Speaker John Bercow narrowly kept his job by a vote of 228-202, defeating a Government-sponsored motion requiring a secret ballot to decide if the Speaker would remain in the chair after the 2015 dissolution. Not surprisingly, and seemingly without exception, governments don’t appreciate having their authority challenged by anyone. So if elected officials are not particularly good at policing their own, then who or what should serve as a balance to democratic “mob rule?”
Even the founding fathers of the United States wanted to avoid democratic processes from getting out of hand. Ironically, after their rebellion, they borrowed ideas from the British system. They created a bicameral legislature with a directly elected lower-house whereby money bills would originate, and an originally unelected upper-house that had certain judicial functions of its own. Even the Head of State would be able to veto legislation. In fact, the US presidential veto has been used 2,461 times (excluding congressional overrides) since 1789. The withholding of royal assent in the United Kingdom has been used a whopping zero times in the same time span. In fact, you have to go all the way back to the Stuart era to find an example of a royal veto.
So this brings us back to the question about what keeps the executive from becoming too powerful? The first line of defence is the House of Commons itself. By withdrawing supply or passing a vote of no confidence, the House of Commons can bring down a Government. The last time this happened was in 1979 when the House of Commons passed a motion of no confidence by 311-310, thus ending James Callahan’s premiership.
The next line of defence is peer pressure… no, not the kind of peer pressure that causes teenagers doing stupid things. I’m referring to the other place in Parliament: the 815 peers of the realm who sit in the House of Lords. However, the House of Lords’ power has been gradually stripped away since the Parliament Act 1911 removed its power to outright veto primary legislation, instead allowing it to delay public bills for two sessions. The Parliament Act 1949, further weakened the Lords power to delay to one session. The Life Peerages Act 1958 allowed the Prime Minister to fill the House of Lords with non-hereditary peers of his/her choosing. The House of Lords Act 1999 removed the rights of all but 92 hereditary peers to sit in the House of Lords, thus creating a more partisan environment. The Constitutional Reform Act 2005 removed the House of Lords function as the highest judicial body in the realm. Yet, many in the UK still talk about how the House of Lords is in desperate need of reform. And by “reform” they mean “elections.”
Recently, the upper chamber rejected the Government’s plan to make cuts to certain tax credits. The Lords were able to do so because the tax credit changes were part of a “statutory instrument”, which is fancy parliamentary language for a legislative tool that can amend existing laws without passing a new Act of Parliament. The House of Lords did its job of making the Government think twice, which is what revising chambers do. It is unlikely they would have had the political will to do so if they were subject to popular election. “Anachronistic” is the word that has been thrown around to describe the House of Lords, even by commentators who agreed with the Lords’ actions on the tax credit cuts, because a one-word argument sounds more logical than “if it works, get rid of it.”
The last line of defence is the Crown itself, through the royal prerogative. So what exactly is the royal prerogative, and how is it used to keep the Government in check? It is a nebulous and mysterious concept that has been talked about at length on Royal Central blogs. Constitutional theorist A. V. Dicey defines it as
“…the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown… [or] Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of the prerogative.”
Examples of the royal prerogative include, but are not limited to: proroguing Parliament, granting pardons, appointing and dismissing government officials (up to and including the Prime Minister), granting honours, declaring war, signing treaties, issuing passports, and granting, withholding, or reserving royal assent to bills.
There is an important distinction between the existence and the use of a royal authority. Under everyday circumstances, The Queen delegates the exercise of her royal authority to her ministers. For example, the Prime Minister can appoint life peers to the House of Lords in the name of The Queen. Yet, Her Majesty can and does unilaterally exercise some of her prerogatives without the advice of her ministers. For instance, appointing members to the Order of the Garter remains the personal choice of the Sovereign. She also has the right to exercise “reserve powers” in very limited cases, which form the basis for the most extreme use of royal authority to check her Government, but more on that later.
I left out one very important prerogative power: dissolution of parliament. Arguably one of the most important powers of the Sovereign. In 1975, Australian Governor-General Sir John Kerr used the Queen of Australia’s royal prerogative to dissolve Parliament. King William IV was the last British monarch to personally use the royal prerogative to arbitrarily dissolve the UK Parliament in April 1831. The Fixed-Term Parliaments Act 2011 removed the dissolution of Parliament from the royal prerogative and replaced it with fixed five-year terms. Presently, the UK Parliament is automatically dissolved 25 working days before the General Election. If there is a vote of no confidence in the House of Commons or if two-thirds of the House of Commons agrees to hold an early general election, then the Prime Minister recommends a date for the General Election, which is announced by royal proclamation, and Parliament is automatically dissolved at 25 working days prior to that date at 5:00pm. Like all Acts of Parliament, statutes inherently replace the human decision-making process with legal codes. It is not at all surprising that this makes the government seemingly run as if it were a computer program.
This abrogation of royal authority not only takes the power to hit the parliamentary refresh button from the Prime Minister, but it seems to imply a constitutional restraint on the Sovereign from dissolving it. There are many constitutional implications of the Fixed-Term Parliaments Act 2011 that are beyond the scope of this article, especially when dealing with a hung parliament. The point is that it can be very difficult to force a dissolution, if needed, without creating a constitutional crisis. But there is one thing that we’re not considering.
Parliamentary primacy resides in the House of Commons, but even more importantly, Parliamentary sovereignty is vested in the Crown-in-Parliament. This is where things start to get fun! In a national crisis, when the people and the Parliament are in serious disagreement, the Queen can personally exercise her “reserve powers.” Reserve powers are the same thing as royal prerogatives, the only difference being the context in which they are used. Reserve powers are personally exercised by the Sovereign alone, usually in a case of national crisis. Whereas the royal prerogative is exercised either by the Sovereign or with the advice and consent of his/her ministers as part of the normal function of governance.
So why have The Queen’s powers never been fully disclosed? Because theoretically, so long as the Crown has the support of its subjects, it can do anything Parliament can do. In the Navy, we called this the doctrine of command by negation. Thus, one interpretation of the abrogation of the royal prerogative, as seen in the Fixed-Term Parliaments Act 2011, is that it only applies to the use of that prerogative by Ministers of the Crown. Restricting the Crown-in-Parliament’s powers is a violation of parliamentary supremacy due to the fact that the Crown is a component of Parliament, and it cannot bind itself or future Parliaments. Unlimited authority is the inevitable consequence of an unwritten constitution. The only method for restricting the personal exercise of the royal authority by the monarch is through either formal or informal parliamentary convention and through the social contract between the Crown and its subjects (which in either case, the Sovereign must agree, thus forming a contract between Crown, Parliament, and subjects).
Since the reign of King George I, the Crown has largely delegated the use of royal authority to its ministers, which has resulted in the illusion of a powerless monarchy. When American schoolchildren learn about the British system of government, they are invariably taught that The Queen is a “ceremonial figurehead” with virtually no power. It is a testament to the state of American education when pupils can learn more about comparative government from watching Johnny English. The villain Pascal Sauvage explains, “The Queen has more power in her tiny white gloves than any other head of state in the entire world. She can declare war or make peace, and most intriguingly, she can seize any piece of land which takes her fancy. Of course, The Queen never uses the enormous power afforded to her.” This assertion is correct in that it follows from the concept of parliamentary sovereignty, of which the Crown is not only an element, but the sole basis for its very existence. The delegation of royal authority is an ancient custom going all the way back to the Curia Regis in medieval times; though it shouldn’t suggest impotence.
The beauty of constitutional monarchy is that there are consequences for both overindulgent or incompetent ministers and monarchs alike; just ask Gough Whitlam and King James II & VII. Reforming the balance of control in Parliament is good if done wisely, but reform just for the sake of reform can cause the disastrous rise of misplaced power. Democratic authority should be counterbalanced with some form of undemocratic authority. In the US, we accomplish this with the judiciary; in the UK, it’s accomplished by the House of Lords, and ultimately, by The Queen.