By Se-shauna Wheatle, Associate Professor of Constitutional Law at Durham University & Roger Masterman, Professor of Constitutional Law at Durham University
The Monarch’s constitutional role is conceived as politically neutral, with elements of apparent discretion constrained by conventions that require the Monarch to act upon the advice of ministers. Bagehot suggested that the Monarch ‘should be aloof and solitary’ enjoying only ‘three rights – the right to be consulted, the right to encourage, the right to warn.’ The 2011 Cabinet Manual adopts a similar stance, maintaining – and suggesting that politicians are under an onus to ensure – that the ‘sovereign should not be drawn into party politics’ ([2.9]).
We should not, however, mistake ‘aloofness’ from party politics for insultation from the politics of the constitution. The Monarch has an active role in the modern UK constitution, exercising personal prerogative powers including appointment of the Prime Minister, giving Royal Assent to legislation, and proroguing and dissolving Parliament. The fact that the Monarch is ‘constitutionally bound to follow’ (Cabinet Manual, [1.5]) the advice of Ministers provides a certain legitimacy to the allocation of governmental powers to a hereditary position. Convention-based restraints mean that while the Monarch may hold a range of powers, she ‘no longer has any effective discretion’ as to how they are exercised.
However, a number of constitutional oddities and dangers exist that test the generally accepted notion of the Monarch as a formally powerful but largely symbolic, apolitical figure. Moreover, a neutral role is in tension with the view of some commentators that – in extremis – the Monarch could, or should, play a more active role as a constitutional longstop, or guardian of the constitution.
The political neutrality of the Monarch is placed under stress from claims that the personal discretion of the Monarch can be called upon to determine the outcome of politico-constitutional disputes. In recent times, suggestions that the Monarch might refuse to grant Royal Assent to Bills duly passed by Parliament or might be called upon to prorogue or dissolve Parliament as a means of prolonging the life of a failing government have highlighted the tension which would result from asking a hereditary Monarch to actively function as constitutional broker.
We consider such an enlarged role for the Monarch, shifting from a decidedly apolitical to a more consequential role, to be inadvisable. Fundamentally, a consequential governmental role for a hereditary Monarch is antithetical to a modern constitutional democracy, which rests on the pillars of democracy and the rule of law. We submit, instead, that suggestions that the Monarch should act as a constitutional longstop are likely to overlay evidence of a deeper instability in the constitution.
Assent to legislation
Bagehot wrote – in the 1860s – that ‘[i]t is a fiction of the past to ascribe to [the Monarch] legislative power. She has long ceased to have any.’ In so far as the initiation of legislative proposals is concerned, as much is true. It is clear however that the Monarch does play a role in the legislative process; the Royal Assent is an essential component part of the enactment of primary legislation. For many, the Royal Assent is a ceremonial adornment, a step which will – by virtue of convention – necessarily follow from parliamentary endorsement of a legislative proposal. Constitutional practice seems to support such a view: the last time Royal Assent was withheld by the Monarch was in 1708.
Yet during the run-up to the United Kingdom’s exit from the European Union, it was suggested that an exception to this unbroken 300-year pattern exists, and that in certain circumstances the Monarch might deny Assent to a Bill otherwise endorsed by Parliament. On first glance, a Royal ‘veto’ on proposed legislation passed by Parliament appears to be anathema to the idea of democratic government. But what if denial of royal assent was in fact recommended by Ministers, upon whose advice the Monarch is ‘constitutionally bound’ to act? This exact scenario formed the backdrop to suggestions – following the passing of the Cooper-Letwin and Benn-Burt Bills, against the policy positions of the then government – that the Monarch might exceptionally deny Royal Assent.
Both Bills were granted Royal Assent, but the suggestion that the Monarch exercise this (contested) reserve power to resolve a tension between Parliament and the executive in favour of the latter highlights a significant uncertainty in our constitutional understanding of democratic government and of the relative constitutional claims of Parliament’s capacity to legislate and the executive’s capacity to govern.
Siding with Parliament in such a dispute would be more consistent with the idea of the Monarch as a neutral actor; siding with the executive would – given the tendency of the UK constitution to generate governments reflecting a particular political party – necessarily have a stronger political connotation.
Prorogation and dissolution
Similar tensions between the constitutional positions of Parliament and the executive arise from questions regarding the potential for the Monarch to refuse ministerial advice to prorogue or dissolve Parliament. Possible triggers include the Prime Minister advising the Monarch to prorogue Parliament as a means of avoiding or delaying a confidence motion or the Prime Minister calling a general election after losing (or being on the cusp of losing) an internal party leadership election.
The latter was a concern during the Thatcher leadership election in 1990 and re-emerged during the recent Conservative Party leadership vote. Following the repeal of the Fixed-term Parliaments Act 2011 and apparent reinstatement of the prerogative of dissolution, the calling of a general election would necessitate advice to the Queen to dissolve Parliament. Since dissolution under these conditions would challenge principles of democracy, and responsible government, it has been suggested by some that the Queen ‘retains a deep reserve power’ to dismiss the Prime Minister or refuse the request to dissolve Parliament.
Robert Hazell wrote that ‘the majority view amongst constitutional experts has been that the Monarch could refuse an untimely request for dissolution, even though there has been no refusal in modern times’. Yet were we to reach a point at which the Monarch is called upon to play an active role in the resolution of political conflict such as this, it will likely provide evidence of a broader failure of the political constitution.
The political constitution supposedly has the tools to ensure that a Prime Minister who lacks the confidence of the House of Commons should not remain in office; the Monarch should not be expected to either dismiss or prolong the tenure of an unviable Prime Minister. Our concern here is not the undermining of sovereign authority (Cabinet Manual, [2.9]) that a monarchical intervention might precipitate, it is rather that the expectation – or hope – that the Monarch should even exceptionally play a role as constitutional longstop is severely out of step with the UK’s claim to possess a modern, democratic, constitution.
The need for a constitutional longstop
The constitutional and political upheavals of the past six years have revealed some of the murkiness that surrounds the real powers and constitutional role of the Monarch. The prospect of the government advising the Monarch to take what might plausibly be regarded as unconstitutional action has prompted reflection on the potential power – or duty – of the Queen to refuse such advice in the name of constitutional guardianship. Ultimately, we have become acutely aware of serious deficiencies in our constitutional guardrails. A constitutional system benefits from the existence of a constitutional backstop – residual powers to be activated in defence of constitutional fundamentals.
However, in our search for reassurances and protection against a constitutionally irreverent government, it would be a mistake to revert to the idea of being saved by a beneficent Monarch. As Rodney Brazier remarked almost 30 years ago, ‘Royal power in the United Kingdom is (or should be) the handmaiden of parliamentary democracy, not its master’. The challenge is for us to locate within the constitutional landscape a guardian that is congruent with the foundations of democratic representation and rule of law on which the constitution rests, not – as some have suggested – to revert to the guiding hand of a hereditary Monarch.