What Gordon might do first: abolish the royal prerogative?

Arguably Gordon Brown's most successful policy was designed while waiting for office, and implemented as a coup over Labour's first weekend: the independence of the Bank of England.

As he waits for the possibility of taking over as Prime Minister,  he may well be wondering how he might similarly create an immediate and lasting impact in his first week in the highest office.

One option for Gordon to consider is the abolition of the royal prerogative. The royal prerogative gives extensive, and unaccountable power to the executive. The government of the day, especially the Prime Minister, exercises enormous patronage and considerable power in its name. These powers enable the executive to appoint and dismiss ministers, dissolve parliament, grant clemency and pardons, award honours, declare war, declare a state of emergency, sign treaties, issue passports, deport foreign nationals, create universities, designate cities, and to make thousands of appointments.  All these powers are exercised with no legislative oversight or control.

The legitimate authority for these decisions should reside in Parliament, which could choose whether and how to delegate decisions to the excecutive, and how the executive would be held to account for the exercise of those powers.

Such a move would be popular with Labour's back-benchers, who want Parliament to determine whether the Government should declare war.  It would be be modernising and forward looking. Opposition would come from only a very narrow group, easily portrayed as reactionary.  Many traditionalists might see it as a necessary step towards the preservation of the monarchy.

Of course, he may not have waited so long and fought so hard to reach the top job only to give many of its powers away. 

8 thoughts on “What Gordon might do first: abolish the royal prerogative?”

  1. Aw, come on, Owen.  You argue persuasively for many lines and then undermine it with this Blairite bullshit  "It would be be modernising and forward looking. "  Ugh.

  2. Come off it.  "Attractive to the left"; ho, ho.  Attractive to the libertarian right, perhaps.  The only attraction for most lefties, I’d guess, is that they could kid themselves that it would be anti-royalist.

  3. You don’t distinguish between the various prerogative powers, you just advocate smashing the whole system. Great contribution. Why pander to damaging gesture politics?

    The prerogative powers relating to dissolving/calling Parliament  and appointing/sacking ministers can be put in commission, as they are in other Commonwealth countries; why should it be necessary as a matter of dignity for the Crown appoint someone to act in Her Majesty’s stead when acting as Visitor of some institution, but not undignified for Her Majesty to get involved in the nitty gritty of parliamentary factional politics when there’s no clear majority in the UK House of Commons?

    But what of the other powers? If retaining the power to make war without prior Parliamentary approval is good enough for Tony Benn, it’s good enough for me (of course, that power can be granted to the executive by statute).

    The real problem is things which any private citizen can do at common law, and things which the executive may do by statute. The theory is that such matters are automatically excluded from the ambit of the Royal Prerogative, but that’s to take things backwards. What is really going on is that the prerogative authorises that which would otherwise be illegal, where illegal means "not licensed by common law or by statute", and this causes people to assume that since the Prerogative is only necessary as an excuse for such conduct, it must follow that conduct which would be legal even without the Prerogative cannot be authorised thereby.

    Some concrete examples: issuing passports and paying compensation to victims of crime. A private citizen can give a passport or money to another person. Obviously in the case of passports many third parties will insist that the passport be issued by some state authority, but no bank is going to refuse a deposit of compensation money on the grounds that it came from a private charity. In both cases, the UK Government claims that its activities are licensed by the Royal Prerogative, despite the fact that the conduct that consists in giving someone something is legal at common law anyway. Why bother claiming that something is legal for a special reason when it’s legal anyway? Firstly, the courts review exercises of the Prerogative at a different standard, and secondly, the Prerogative allows HMG to escape any statutory conditions on the exercise of its powers: the statutory criminal compensation regime can just be ignored and the Government can run a scheme according to its own desires.

    These false prerogatives, invented since the cut-off date for prerogative powers (1689), should be abolished wherever they run concurrently with the common law or with statute. The rest should be left alone.

  4. Martin

    Thanks for this helpful clarification.

    I agree with you that the use of prerogatives to enable the government to dilute judicial review or to escape statutory conditions on the exercise of power is particularly egregious and should be stopped.

    But I don’t follow the argument for retaining the older prerogative powers such as signing treaties (notwithstanding the views you report of Tony Benn).  Parliament, not the Executive, should approve treaties or declare war.  Why is that controversial?

    I don’t think many voters would regard shifting responsibility for this from royal prerogative to parliament as "smashing the whole system".  It would be a valuable and significant, and long overdue, reform.

    Owen

  5. G’day again Owen

    Let’s not conflate whether the power reposes in the executive or legislature with the legal basis of the power.

    With regard to ratification of treaties, I certainly think that this should be done by Parliament, not the Crown acting under the Marlborough Convention. A treaty is just a deal between the executives of two different states – the very last thing you want to come into effect without scrutiny by the legislature. Of course, if we were to discern a "principle" behind your desire to have Parliament "approve" treaties, we might find it conflicted with any remotely practical mode of interacting with the EU legislative process, relying as it does on effectively non-existent scrutiny of the executive’s conduct of relations with other states.

    When you ask why transferring the conduct of international relations to Parliament is controversial, are you implying that you are aware of no reasons this might be a bad idea? Does being further out of the mainstream than Tony Benn not suggest to you that your point of view might be a little unusual? (Benn’s view seems to be that all Royal Prerogative powers can and should be put on a statutory basis, and the power of declaring war should be exercisable in emergencies by the executive without reference to Parliament).  The attempts to put various war and war-like deployments of troops on a formal statutory basis remains the subject of an interminable constitutional row in the United States since 1973, and I can see no reason that a UK equivalent would be magically free of controversy.

    But anyway, this is beside the point.

    You can’t really be saying that all the prerogative powers should henceforth repose in the legislature, and when I talk about "smashing the whole system" what I’m really talking about is the abolition of the prerogative powers of summoning and dismissing Parliament and appointing and dismissing ministers. These are not just powers exercised on the whim of the Government for there may be no government and no majority in the Lower House; this hasn’t happened in recent UK history but is always a possibility, and does happen under other Westminster constitutional monarchies.

    What changes when you abolish a prerogative power and replace it with a statutory one exercisable by the executive (as opposed to the legislature(!)) is who can change the conditions of its exercise. Prerogative powers have the advantage that, in general, the Government can’t tinker with how they’re used or their scope, unless some brain damaged court decision has opened the floodgates (passports being the only decent example). Put something on a statutory basis and suddenly the Government can amend the statute.

  6. Pingback: Owen’s musings » Blog Archive » The Royal Prerogative : will Gordon give up the power?

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