That’s my (Royal) Prerogative
How a right-wing government can use the Royal Prerogative to assist in rebalancing the constitution
What is one of the (presumably small) number of traits that Britney Spears and King Charles III have in common? They both have a prerogative.
Bad puns aside, the latter’s, the Royal Prerogative, is going to be very important when Reform UK or the non-Liberal Democrat wing of the Conservatives (or some combination of the two) get back into power and start shaking up Britain’s system of governance with a proper right-wing agenda. If the pronouncements of Reform’s MPs and Robert Jenrick’s X account are to be believed, this will include curtailing judicial power, repealing New Labour statutes (such as the Human Rights Act 1998 and the Equality Act 2010), reducing the power and size of the Civil Service and quangocracy, and getting rid of the targets (notably environmental targets) that shape so much of government decision-making. And they will want to do it quickly, mimicking the Second Trump Administration’s flurry of executive orders upon taking office. Doing any of that will require a revolution in Britain’s staid and vague constitution, and a level of courage that is usually beyond our spineless political class.
Let’s start with the constitution itself. For total beginners, Britain has a written, but uncodified constitution. Simply put, it’s (mostly) written down, but not all in one place. There are constitutional statutes, including everyone’s favourite, the Human Rights Act, but we don’t know precisely what they all are or the exact delineation of powers between the Crown (these days acting almost entirely via His Majesty’s Government), Parliament, and the judiciary. Historically, this worked surprisingly well, being helpfully vague during Britain’s rare moments of constitutional crisis. Now, however, the system needs a drastic rebalancing.
But how is the constitution supposed to work? In short, Parliament makes laws; the judiciary interprets them; the Government executes. Government powers not derived from Parliament sit in the Crown. The King has some nominally personal prerogative powers — notably to appoint his ministers, assent to legislation, and to prorogue or dissolve Parliament — which are in practice exercised on the advice of the Prime Minister. However, most have now been vested in his Government — including the power to make treaties, deploy the armed forces, grant peerages, and make public appointments. The prerogative powers have been in flux in the twenty-first century: Blair and Brown put some of them on a statutory footing (through constitutional reform legislation in 2005 and 2010); the Coalition Government sought to further codify them in the Cabinet Manual and passed the (now repealed) Fixed-term Parliaments Act 2011, regulating dissolution; and the courts weighed in on the scope of these powers in the Miller I and Miller II cases. Yet, for the most part, the prerogative powers continue to be regulated by convention and not by (hard) law, making them adaptable to the circumstances.
Chapter 1 of any constitutional law textbook will tell you that Britain’s main constitutional principle is ‘Parliamentary sovereignty’ — i.e., that Parliament is supreme because it can (in theory) make or unmake any law without restriction. This is what the former Liberal Democrat MP for Cambridge and legal academic David Howarth terms the ‘Westminster view’. This theory has at least returned to coherence since Brexit, now that we no longer accept the supremacy of EU law (before then, we had to pretend for fifty years that we only accepted EU law as supreme because Parliament wanted to). The alternative view is that the Crown — i.e., the King’s Ministers — is on top despite the theoretical supremacy of Parliament because, in reality, the Government itself sits in Parliament and focuses on enacting its manifesto, only rarely losing control of the order paper when it can’t command a reliable majority, a circumstance which is likely to cause the fall of that Government soon enough anyway. This view is termed the ‘Whitehall view’.
We could perhaps say that while the ‘Westminster view’ focuses more on theory, the ‘Whitehall view’ is more interested in practice. However, if the intention of the ‘Whitehall view’ is a focus on practice, then the invocation of ‘Whitehall’ is unhelpful, conjuring up as it does images of Sir Humphrey Appleby as the real power behind the scenes. In fact, due to a series of individually non-nefarious but collectively problematic legislative and process changes since 1997 — under both Labour and the Conservatives — the judiciary has been empowered at the expense of both Westminster and Whitehall. As such, neither the ‘Westminster view’ nor the ‘Whitehall view’ really stands up to scrutiny. This is a serious problem for representative democracy in general, and for doing things radically differently in particular.
I would offer a third view on the current state of our constitution: that our ‘Mother of all Parliaments’, ‘Rolls Royce Civil Service’, and internationally-recognisable Royal Family (hello, Meghan) are now dedicated to what the late Lord Bingham would call the ‘rule of law’, but is in fact stifling amounts of process. Put more succinctly, our main constitutional principle is now self-imposed complexity leading to inertia. Obviously, much of what political parties promise does eventually happen; the Government produces impressively vast amounts of secondary legislation (usually without much scrutiny); and the executive and Parliament successfully combined at speed to imprison us all in our houses during the COVID-19 pandemic. However, ministers of all political stripes will complain that their will is often ignored, and things they thought were dealt with months or even years earlier are still floating around in the Whitehall ether.
Further, as Dominic Cummings and others have pointed out, much of what politicians think is action is actually just theatre. Ministers choose from carefully curated options that have made it through interminable process — options that pose acceptably low ‘legal risk’, comply with the government’s million-and-one duties, have passed (or would pass) their Equalities and other ‘impact assessments’, and have been written round a copy-list of 150 ‘interested’ departmental and public body officials. Acceptable options are presented by 22-year-olds working ‘collaboratively’ and ‘at pace’ for three to six months before moving swiftly on to another rotation, screened by overworked SpAds, receive a decision, and then are remitted back for implementation — kicking off another set of interminable processes. The Minister then meets other ministers, or industry and consumer bodies, to deliver scripted remarks and receive scripted replies. Permanent Secretaries and other senior civil servants can’t plausibly be secretly pulling the strings behind the scenes because they spend their whole day in pointless meetings discussing briefings and documents drafted into incomprehensibility by committee. Parliament, of course, has its role to play, or rather not to play: mediocre MPs fail to scrutinise the vast quantities of secondary legislation being laid by departments, more concerned with getting thirty seconds of footage of their urgent question about local infrastructure, garnering circa 150 views on their Facebook page.
Judges, ‘foreign courts’ (these days meaning the European Court of Human Rights in Strasbourg, rather than the Court of Justice of the European Union in Luxembourg), and lefty lawyers also play a substantive role in constitutional inertia. The heavy-handed application of ECHR convention rights in English law, or administrative court judges pointing out the persistent failure of departments to follow their many processes, quashing the decision and winning themselves a Daily Mail headline or two in the process, is more accident than activism. They’re certainly not the ‘enemies of the people’, and vilifying the judiciary isn’t a real solution, nor is it how a serious government should go about fixing our constitution. For example, the ‘chicken nuggets case’, reported as an appellant successfully challenging a deportation order based on his son’s aversion to foreign chicken nuggets, was in fact overturned by the upper tribunal (even though you can bet your house that the appellant has still not actually been deported).
Where I differ from Cummings is that I don’t think much — if any — of this is actually conspiratorial: bad laws, risk aversion, and ideology have instead created a complex ecosystem where no one is really in charge. If anything, it’s the rule of ‘legal risk’, not the rule of bureaucrats. The aim of this article is not to point fingers, because the system as a whole is the problem — though there are culprits if you know where to look. Ministers looking for the next press release, or a quick fix, have found it expedient to impose duties and principles that the government legally must consider before taking action. MPs, steadily declining in both ability and relevant expertise, were happy to delegate Parliament’s legislative functions — and most importantly, political risk — to government departments or regulators, but have been much less interested in scrutinising the results.
We can also blame Tony Blair, whose notorious 1997 command paper Rights Brought Home, which argued for the need to incorporate the ECHR into domestic law via the Human Rights Act, contained the following fantastical statement: ‘British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe.’ It’s been distinctive indeed: judicial mission creep has been a slow and steady process, punctuated by occasional milestones, such as the abolition of the traditional functions of the Lord Chancellor and the creation of the Supreme Court in the Constitutional Reform Act 2005.
I’d also implicate those who claim to have recognised the problem, but weren’t prepared to expend the necessary political capital to do something about it. This includes Kemi Badenoch (on the basis of her prognosis of why the Conservatives ‘talked right but governed left’). Finally, we, the people, must shoulder some of the blame: many of the planks of this framework seemed sensible enough individually, and we (sort of) consented to it, given the existence of party manifestos.
So what does all of this have to do with the Crown, you may ask? Well, in the words of Hazell and Sayers-Carter, ‘…the monarch remains the ultimate guardian of the constitution, with deep reserve powers in the event of constitutional emergencies’. As we have hopefully demonstrated above, this country desperately needs to dig itself out of a deep constitutional hole. It’s time for the King, acting through his Ministers, to shake things up à la Trump. And before any Guardianistas reach for their favourite line, that ‘conservatives are supposed to value institutions’, these institutions — the Civil Service, the judiciary, and Parliament — have fallen into deep and unaccountable dysfunction. If anything, we’d be saving them from themselves. What is the point of preserving a thousand years of august English legal tradition if you can’t even deport foreign paedophiles?
Of course, there is going to have to be a vast programme of primary legislation to enact much of the Right’s agenda: reforming or repealing the Human Rights Act 1998, Equality Act 2010, Climate Change Act 2008, Environment Act 2021, constitutional and devolution statutes, policing and justice statutes, digital and sectoral regulation statutes, immigration statutes, and the EU Future Relationship Act 2020. Ideally, they wouldn’t try and do much or all of this in a ‘Great Repeal Act’ because — public relations benefits aside — it would be a bill so monumentally complex that it would be easily derailed by agents of the status quo.
This legislative programme will take time. In the meantime, the prerogative will be an essential vehicle for quick and effective action in other areas, notably national security, public appointments, and — eventually — the judiciary. Most of all, it’s a symbolic way to demonstrate to the general public a moral courage that conservative politicians have severely lacked of late.
The Royal Prerogative, although codified in some aspects, remains significant in the area of national security. Under the Civil Contingencies Act 2004 (CCA), the King retains wide powers to make regulations to tackle emergencies with only limited Parliamentary scrutiny, and few would deny that small boat crossings are reaching crisis proportions. The King also retains ultimate authority to deploy the armed forces, including domestically for work of national importance by convention and under the Emergency Powers Act 1964. CCA regulations can’t overturn the Human Rights Act, so lawfully turning back small boats will remain a challenge pending more fundamental surgery of the legislative framework. Nonetheless, they could play an important part in ending the mockery of our immigration and asylum system: for instance, CCA regulations could overturn requirements to provide so generously for asylum seekers and facilitate their detention pending deportation. The armed forces — which, while atrophied, are probably the only part of our dysfunctional public sector really able to move ‘at pace’ (as shown by the state’s increasing reliance upon them in such diverse matters as the London Olympics and COVID vaccinations) — should play a key role in enforcing a fast and muscular approach to immigration enforcement, in parallel to legislative and policy actions tackling the many causes of our broken immigration system: the ECHR, HRA, other international law obligations, appeals and reviews, locating returnees, and getting countries to take their citizens back, to name but a few.
The management of the Civil Service, previously done on a non-statutory basis, was formalised by the Constitutional Reform and Governance Act 2010 (CRAG). CRAG is a bugbear for conservative jurists, partly because it entrenched the many processes which plague the Civil Service. That notwithstanding, the process for regulating appointments to the broader quangocracy — including non-departmental public bodies, non-ministerial departments, and the BBC — is regulated by the Commissioner for Public Appointments, a creature of the prerogative. Revoking or reforming the Commissioner’s Governance Code on Public Appointments, which contains the usual twaddle on the importance of ‘diversity’, is an important first step towards quick appointments across the public realm to end the constant failure upwards and soft-left bias that is sadly endemic. This will be tougher for the Civil Service itself, as CRAG gives the equivalent Civil Service Commissioner a statutory basis, but the government should do what it can pending legislative reform. Less palatable — given that it’s already packed with lackeys and non-entities — will be the likely need for the King to create peers en masse if the House of Lords, which uses its powers more subtly these days, seeks to delay the new government’s legislative programme.
Judicial mission creep — facilitated, but not really intended by statute — will principally have to be undone by statute. Justiciability of decisions and grounds and rights of appeal will have to be curtailed by primary legislation. The power of the executive — i.e., the prerogative — to appoint judges, which was effectively ceded to the Judicial Appointments Commission (JAC) by the Constitutional Reform Act 2005 (CRA), will need to be restored, including repealing the ridiculous requirement for the JAC to encourage ‘diversity’. Some of the traditional functions of the now much-diminished Lord Chancellor, who previously bridged the gap between the executive and the judiciary, should be restored. In the meantime, a radical option could be to use the order-in-council (delegated prerogative) power under the CRA to increase the size of the Supreme Court, and then, using the limited discretion afforded to the Lord Chancellor in setting the process, to refuse nominations until conservative jurists (or iconoclastic outsiders in the mould of Jonathan Sumption) are proposed by the selection commission. This would be less ‘court-packing’ in the American style (as Roosevelt infamously threatened in 1936), and more restoring the limited, but rarely exercised, executive restraint over the judiciary, via the Lord Chancellor, that predated the CRA.
These are just some examples of the sort of constitutional work that the Tories had little appetite for in office (and Labour has absolutely no appetite for whatsoever). If Reform or a recast Conservative Party are serious about making fundamental changes to how this country is governed, and in whose interest, then they will need to come into office already prepared to make difficult and unprecedented decisions in their quest to rebalance the constitution.
This article was written by Amar Johal, a Pimlico Journal contributor. Have a pitch? Send it to pimlicojournal@substack.com.
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I don't understand the opening sally. Can anyone explain?