Question 1

“The principal convention of the UK constitution is that the Queen shall exercise her formal legal powers only upon and in accordance with the advice of her ministers, save in a few exceptional situations.”

De Smith and Brazier Constitutional and Administrative Law.

Discuss.

Answer guidance

You will have been taught that the Queen retains a good number of her legal, prerogative powers, but that by convention, the Prime Minister of the day and her government use those powers and act in the Queen’s name. Generally, the Queen, only has “the right to be consulted, the right to encourage and the right to warn”. The Queen is entitled to state, in her weekly private meetings with the PM, that she does not like what the PM is proposing to do, but if the PM insists, the Queen will comply. The question is asking you to consider the “few exceptional situations” when the Queen might say No. For example, it is thought that the monarch does often express very strong views about their preference and that the PM will sometimes moderate their position.

Various memoirs record the King George VI expressed strong views on ministerial appointments and some government policies, but we will not discover whether Queen Elizabeth II did the same until after her death, when Prime Ministers and advisers feel released from their obligations of confidence.

Constitutional writers claim, that in certain circumstances, the Queen would be entitled to refuse a request for the use of her prerogative powers. A study of constitutional history revealssome examples.

The Queen has not refused a request for a dissolution of Parliament since 1834, but could she, if she was convinced that it was in the national interest? Nowadays the Fixed-Term Parliaments Act 2011 states that there must be a General Election every 5 years, unless a two-thirds majority of the House of Commons authorises an earlier date. Alternatively, the Government might lose a vote of confidence and an election would follow unless another government could be formed. In 1952, the King’s Private Secretary wrote a famous letter to the Times claiming that the King could refuse a dissolution, if it was in the national interest, and another Prime Minister could be found. Could the Queen still refuse the PM’s request for a dissolution, after the loss of a vote of confidence, and ask Parliament to try again to form a government, if she thought that it was in the national interest?

In the past, the Monarch has been involved in the choice of Prime Minister. A Prime Minister is the person who can command a majority in the House of Commons and the Queen accepts that, but what if there was no obvious candidate who could command a majority? Could the Queen become involved in the choice of a PM, as appears to have happened in 1931, when Labour’s Ramsay MacDonald became the leader of a largely Conservative government. The last ‘hung Parliament’ was in 2010, but the Queen was able to stand aside, as the Conservatives and Liberal Democrats managed to form a coalition.

All Acts of Parliament require the Royal Assent to become law. The last time the Assent was refused was in 1708 and that was upon the advice of the government. It is hard to see that happening now, when the government usually has a majority in the House of Commons. However, suggestions were made at the end of 2019, when the Commons was obstructing the government’s plans for Brexit, that the Prime Minister could advise the Queen not to accept any Bill passed against his wishes.

The PM can start a war or conclude a treaty using the royal prerogative. Nowadays, it is expected that the PM would gain the approval of the Commons at least, before proceeding, as with the 2015 bombing of Syria, but there is no legal requirement to do so. If the PM disregarded the wishes of the Commons and, by implication the people, should the Queen intervene?

In 2019, Prime Minister Johnson requested a prorogation of Parliament, to which the Queen acceded. The Supreme Court concluded that Mr Johnson did not have the prerogative power to ask for a long suspension, as Parliament must be able to fulfil its vital constitutional role of holding the government to account: R (Miller) v Prime Minister [2019] UKSC 41.

The Court did not accept that the Prime Minister had misled the Queen, so the possibility of the Queen dismissing the Prime Minister did not arise. It is thought that the Queen retains the power to dismiss a PM who is acting unconstitutionally, as happened in Australia, with Gough Whitlam in 1975. What would it take for the Queen to do this in the UK? That is what this question is asking.

Question 2

Assess the current significance of the Monarch in the UK constitution.

Answer guidance

There is quite a lot of law that surrounds the role of the monarch in the UK constitution. The Act of Settlement 1700, for instance, determines who may become King or Queen. Under that Act the first-born male child succeeds in preference to female children. This was amended in modern times by the Succession to the Crown Act 2013, which ensures that the person that succeeds is the eldest child, irrespective of whether they are male or female. The 2013 Act also reduces discrimination against Roman Catholics, in that the heir to the throne is no longer disqualified if they marry a person of that religion. However, the King or Queen is still not permitted to be a Roman Catholic.

The Queen is Head of State of the UK and 15 other countries, including large countries such as Canada and Australia. As such, she performs a large number of ceremonial and official functions. Each day she must work through and approve a large number of government documents. She is also head of the Commonwealth, a multilateral organisation of 53 countries, most of which were once British ruled. Through this role she can promote international cooperation on many subjects.

The Queen and most of her family attend many official functions. This helps to promote a sense of tradition and national unity. If nothing else, it generates money from tourism!

Legally the Queen retains many powers to govern the country, known as the royal prerogative. These are mentioned in Question 1 and in Chapter 4. They could be used again in this essay. By convention, the Prime Minister, or other government minister, acts in her name, but the Queen must be consulted about the use of her powers. Bagehot wrote that the Queen has “the right to be consulted, the right to encourage and the right to warn”. This gives the Queen the opportunity to give helpful advice. She has a lot of experience of governmental and world affairs, as she has now, in Boris Johnson, her fourteenth Prime Minister. The “warn” part means that the Queen might be able to act as a restraining influence upon a rash PM, so material from the answer to question 1 could again be recycled in this answer.

Question 3

Does the institution of Monarchy serve any useful purpose today?

Answer guidance

It is easy in Constitutional law to ask basically the same question, but in a slightly different way.

Your answer could be very similar to that of Question 2, but here, in addition to describing what the monarchy actually does, you are being asked to argue a point of view, is the monarchy useful or not?

Some would argue that the monarchy is too expensive. The Sovereign Grant Act 2011 agrees the financing for each King or Queen’s reign, rather than the older system of annual renewal. The Queen receives the Civil List, for salaries and the expense of running the royal household, but with extra allowances for travel and maintenance of the royal palaces. The money is supplied by Parliament and the Crown must provide a proper explanation of how it is spent. In addition, the Queen and her heirs have considerable wealth of their own, generated by their large landholdings.

The Queen is Head of State of the UK and 15 other countries. Head of State is an important symbolic and ceremonial role, but also involves being consulted on many things that the government is doing or proposes to do. This includes her numerous powers contained within the royal prerogative, which are generally exercised by the Prime Minister in her name. Though the Queen does not refuse the Prime Minister’s requests to use her prerogative as seen in R (Miller) v Prime Minister [2019] UKSC 41, she can advise the Prime Minister on whether the proposed actions are wise. Unfortunately, as this advice is confidential, we do not know what it is.

The Queen is also Head of the Commonwealth, an international organisation of mainly ex-British colonies. Apparently, she takes her role of promoting harmony and co-operation in the Commonwealth seriously.

Most would agree that the Queen carries out some valuable roles and so if you are arguing that the Monarchy is unnecessary, your answer would need to explain who else would carry out these tasks. If it was the PM, would that give them too much power? If we decided on a President, how would that person be elected or chosen and what powers would they have? There is a particular problem with the unwritten UK constitution. The prerogative powers of the Queen derive from ancient common law and there is still some uncertainty about exactly what they are: e.g. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [No. 2] [2008] UKHL 61. The powers of the Prime Minister are nearly all conventional rather than legal. Abolition of the Monarchy would mean that at least this part, the major part, of the constitution would have to be written.

The agreement of other countries would also have to be obtained for any change to the British Monarchy. The 15 other countries of which she is Head of State would have to be consulted. Each has a Governor-General, acceptable to that country, formally appointed by the Queen. Presumably, that system could not continue, and a new Head of the Commonwealth would also have to be found.

Question 4

Consider the extent to which it is possible to judicially review the royal prerogative?

Answer guidance

The Queen retains many legal powers, known as the royal prerogative, which are in fact exercised by the government. But, because, the Queen has Crown immunity and cannot be sued (Lord Advocate v Dumbarton DC [1990] 1 All ER 1), it was thought for a long time that the use of a prerogative could not be challenged under the process of judicial review.

The court would confine itself to looking at legal and historical sources to decide whether the prerogative power still existed and whether it gave the government the power to do what was claimed. There are several well known cases where this has occurred: BBC v. Johns [1965] Ch. 32, Attorney-General v. De Keyser’s Royal Hotel [1920] AC 508, Burmah Oil v. Lord Advocate [1965] AC 75, R. v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1987] 2 WLR 998 and even the relatively recent R (Bancoult) v Secretary of State for Foreign Affairs [No 2] [2008] UKHL 61.

It is clear that if the prerogative power has been superseded by an Act of Parliament then the Crown should use the Act, which is likely to provide greater protection for the citizen: Attorney-General v. De Keyser’s Royal Hotel [1920] AC 508, R. v. Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513.

The House of Lords finally conceded that judicial review of the royal prerogative was possible in R. v. Secretary of State for the Foreign and Commonwealth Office, ex parte The Council of Civil Service Unions [1985] AC 374, but this was only for minor or delegated uses of the prerogative. The use of the high prerogatives of state such as the making of treaties, defence and official appointments could still not be challenged in the courts.

Since that date, there have been a few successful challenges to prerogative power in Rangis Begum v Secretary of State for the Home Department [2014] EWHC 2968 (Admin), where a UK citizen was refused a passport, and in R v. Home Secretary, ex parte Bentley [1993] 4 All ER 442, where a royal pardon had been refused.

It could be argued that the courts are slowly becoming braver in challenging high-handed government actions. In R (Bancoult) v Foreign Secretary [200] QB 1067 AC 453 the court overturned an Order in Council, and in R (Miller) v Prime Minister [2019] UKSC 41 the Supreme Court stated that the Prime Minister had no power to prorogue Parliament for a lengthy period. It is important to note, though, that these are not findings that the prerogative has been misused, but that the power claimed did not exist in the first place, as explained in the second paragraph. This is far less controversial.

Question 5

Should the royal prerogative be reformed?

Discuss.

Answer guidance

It is often argued that the royal prerogative gives the government of the day too much power. As we can see in Answer 4 the courts have only asserted limited powers to control the prerogative.

The royal prerogative is the remains of royal powers that have not been removed by statute. This causes a major problem, as it is unclear which powers remain and, more pertinently, what exactly they allow the government to do. The ‘Governance of Britain’ report, in 2009, attempted to list all the prerogative powers, but the government declined to confirm whether this was a complete and accurate list. It is very convenient for a government to have a reservoir of powers that are undefined.

As we saw in the previous essay, the courts play a valuable role in confirming or denying whether a prerogative still exists and what, exactly, it allows a government to do: R (Miller) v Prime Minister [2019] UKSC 41. This seems an unsatisfactory method of control, as it requires someone to take legal action, usually after the claimed power has been exercised. It is even rarer for a court to hold that a prerogative power exists, but has been illegally misused: R v. Home Secretary, ex parte Bentley [1993] 4 All ER 442,

The government is accountable to Parliament for its use of the prerogative. The government does not usually need Parliament’s permission to act under the prerogative and Parliament is often reduced to criticising after the event. There are many areas of the prerogative on which governments decline to answer parliamentary questions. These would include any conversations with the Queen, military matters, appointments and the grant of honours, national security, relations with other states, decisions to prosecute, and other matters. This has been criticised by the Commons Public Administration Select Committee in their 2004 report, “Taming the Prerogative” 2003-4 HC 422.

There has been progress since then: it would now be unthinkable, after the Iraq War, for a Prime Minister to launch military action without parliamentary approval.

As we saw in the first essay, the Queen might in theory forbid a Prime Minister to use her prerogative power, but the political reality is that this is extremely unlikely. However, the Queen would be able to offer advice, which might be helpful.

Many prerogative powers have now been put under statutory control. Examples include the Treasure Act 1996, the Intelligence Services Act 1994 and the important Constitutional Reform and Governance Act 2010, which brought the Civil Service under statutory control and required Parliament to ratify treaties. Even the Prime Minister’s power to call a General Election has been limited by the Fixed Term Parliament Act 2011. This process will no doubt continue, so that the prerogative will reduce, but it is unlikely that any government would be willing to surrender all these valuable and flexible powers.

The only reform that would really bring the royal prerogative under parliamentary and judicial control would be its replacement by a written constitution. The Gordon Brown government toyed with such an idea in the Constitutional Reform and Governance Act 2010, but the proposals never got very far.