Terminology, Concepts, and Practice – UK Constitutional Law Association
This post argues that the terminology of “reserve powers” and “personal prerogatives” are inaccurate and misleading descriptions of the royal powers of prime ministerial appointment, the dissolution of Parliament, and royal assent. They should be described in our constitutional writing as the “formal” or “ceremonial” powers of the royal Head of State. They are distinguishable as being “direct” prerogatives of the Monarch, separate from other Crown prerogatives that are exercised “indirectly”, in the name of the Crown, by ministers.
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As the parliamentary committee on the Fixed-term Parliament Act [2019-21, HC 1046] emphasised when considering its repeal and a revival of the Crown prerogative of dissolution of Parliament, the role of the Monarch should be clearly stated. This is certainly true in respect of several Crown prerogatives that are exercised directly by the Monarch since these legal powers are of vital importance to our politics and system of government.
As every student of government knows, the most sensitive of these prerogative powers relate to the appointment and dismissal of a Prime Minister, the calling and dissolution of Parliament, and the royal assent to legislation. These Crown “prerogatives”, as they have been identified and termed in legal circles for many centuries, are the legacy of medieval times when Kings and Queens arbitrarily ruled the country by divine provenance.
Many proposals have been made to codify the direct prerogatives either individually or collectively to make them subject to a more effective process of parliamentary scrutiny and consent. Virtually all have proceeded no further than election manifestos, green papers, or private members’ bills, except in the notable case of the Conservative government’s erratic legislation on the dissolution of Parliament (Fixed-term Parliaments Act 2011, repealed in 2022).
There has been considerable uncertainty in parliamentary and academic debates on the role of the Monarch in the exercise of these powers, with talk of grey areas and resort to utterances of royal officials long ago for authority. This deserves clarification and correction. We have a new personality on the Throne who will benefit from clear constitutional guidance, and there is a new edition of the Cabinet Manual in the offing, which unintentionally or otherwise is emerging as a novel form of quasi-legislation on constitutional affairs.
In my view, the public role of the Monarch needs to be stated in terms that are unambiguous and clear, avoiding any suggestion that they have any residual discretion or mediating role to play in the political process of twenty-first century British government.
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Nineteen years ago, I gave a lecture on the subject in Whitehall, “Monarchy and the Personal Prerogatives”, subsequently published in the journal Public Law (2004, 546-563). My thesis was – and is – that since 2000, in the new century, the role of the Monarch has become firmly established as a matter of constitutional practice. The long reign and constitutional rectitude of Queen Elizabeth had allowed this to crystalise clearly and definitively.
In summary, prime ministerial appointments are formalised at the Palace following electoral and political events that are regulated by established precedents and conventions. The Monarch’s legal powers to summon and dissolve Parliaments, and to grant royal assent to legislation, are performed automatically on prime ministerial advice, subject to a sole proviso which is where the Prime Minister has lost the political authority to govern.
Thus, the person who is to be Prime Minister, as is well-known, is the party leader with an overall majority in the Commons; or where none exists, it is the party leader who secures a cross-party coalition or confidence and supply agreement. The outcome of the 2010 hung Parliament, among the most arithmetically challenging combinations that could arise, served to conclusively illustrate and confirm constitutional practice. It excluded any personal role for the Monarch beyond performing the ceremonial formal act of appointment at the Palace. In extremis where cross-party negotiations might ever fail, a fresh general election will be required; there is no appeal or referral to the Palace for the personal choice of the Monarch.
The summoning and dissolution of Parliament are by convention simultaneous royal acts contained in the same royal proclamation. In normal circumstances the Monarch simply issues this proclamation on the “advice”, in other words direction, of the Prime Minister. The formal and automatic nature of this type of royal act was confirmed by the Supreme Court in the Miller No. 2 case [2019, UKSC 41], where the prerogative decision on the prorogation of Parliament that it declared unlawful was recognised as belonging exclusively to the Prime Minister. The only proviso relates to the authority of the Prime Minister to remain in office and therefore be constitutionally competent to advise the Monarch, discussed separately below.
The automatic nature of royal assent has long been accepted by the Palace and Downing Street. It is well known that royal assent has not been withheld for over 300 years, and the personal power to do so was correctly referred to by the Prime Minister Herbert Asquith in 1910 as being “literally as dead as Queen Anne”. As the official website of the Monarchy itself has stated, “the role of the Sovereign in the enactment of legislation is today purely formal”.
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The proviso to the normal rule on dissolution affairs raises commonly avoided and widely misunderstood issues, often giving rise to talk of “grey areas” of convention fantasising on scenarios when a Monarch might intervene and interpret whether an election is in the country’s best interests or not. These misconceptions are largely due to approaching the subject from the perspective of general election timing, and when and if an election is necessary or desirable in the abstract, when the fundamental issue is the authority of the Prime Minister.
Under existing circumstances, a duly appointed Prime Minister has the unrestricted right to a dissolution at their discretion. Modern practice and precedent clearly establish this, with no royal veto of a dissolution decision by a Prime Minister in the democratic era. However, a Prime Minister forfeits that right following a resolution of No Confidence being passed in the House of Commons which by convention requires them to call an immediate general election or, if they prefer, resign office in favour of the Leader of the Opposition. Inaction and a continuation in office would require their dismissal, on which see below.
Similarly, a loss of authority to advise on dissolution affairs arises from a Prime Minister’s deselection and replacement as leader of the governing party in the House of Commons, or most obviously from the outcome of a general election defeat where the opposition wins an overall majority. A failure to resign office in these circumstances requires their dismissal, as follows.
Since there is no UK law on the office and tenure of Prime Minister which the Supreme Court can enforce, the Monarch remains the only legal means by which the errant Prime Minister can be removed from office. In these situations, the Monarch is therefore bound to dismiss the Prime Minister, rejecting any advice they give on the exercise of the prerogative, and appoint the Leader of the Opposition.
It is to be emphasised that there would be no personal discretion involved in this dismissal; rather, it would be an imperative constitutional role and duty of the Monarch to act, because of the current vacuum of any other legal remedy. In substance, it would be giving force to the constitutional primacy of the House of Commons, analogous to the Supreme Court doing so in the Miller No. 2 case.
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There are two expressions in current circulation in academe and the corridors of power that are at odds with these accurate statements of constitutional practice. They are the expressions “personal prerogatives” and “reserve powers”, suggesting that a residual personal discretion is still today possessed by the Monarch in the exercise of these prerogative powers. They should be immediately expunged from our constitutional vocabulary and literature, substituted where now in use by the terms “formal” and “ceremonial” powers of the royal Head of State.
The terminology of “personal prerogatives” was invented by Ivor Jennings almost a hundred years ago in his influential book, Cabinet Government (1936). Though a brilliant piece of academic writing for its day, its underlying concepts have outlived their relevance in the changing social and political context of the period since. Nonetheless, the expression regrettably found its way into the Dissolution Principles prepared by the Conservative government to accompany its Dissolution and Calling of Parliament Act 2022.
The other terminology is that of “reserve powers”, sometimes used in foreign countries to describe the discretionary powers of their Head of State. This was adopted by Rodney Brazier in his book Constitutional Practice in 1988, followed by some other academics, and then regrettably copied in the sections on the Monarchy for the first edition of the Cabinet Manual in 2010.
This terminology confuses the position in the UK with that operating abroad, in some presidential systems and particularly in the Commonwealth Realms where the expression is widely used to refer to the role of Governor Generals.
The role of Governor-Generals today, including in Australia, Canada, and New Zealand, is to serve as de facto Head of State, selected on merit for a limited term of office. The British Crown may be retained in their colonial-sourced constitutional law, but no one today believes other than that they are independent democracies with their own characteristic political culture and traditions. The political role of Governor Generals today is and should be regarded as a matter clearly distinct and separate from that of the UK’s hereditary Monarchy.
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It is in no one’s best interests for our constitutional language to be suggestive of some independent discretionary element in the role of the UK Monarch in the highly charged political scenarios of government formation and general election timing. Such a role is defunct as matter of history and precedent, unnecessary as a matter of practice, and contrary to democratic principles: the ultimate guardians of the constitution are Parliament and the Supreme Court, not the Monarchy.
Similarly, we should reject any suggestions about the Monarch possessing reserve powers that are “deep” or operating in “wholly exceptional circumstances”. Keeping the door ajar, permitting an individual who is unappointed and unaccountable to self-define the circumstances of what is exceptional and when and if to intervene in the political process, is devoid of constitutional logic and unnecessary, since existing conventions and procedures cover any eventuality that could possibly arise.
It also undermines public and parliamentary clarity on the role of the Monarchy. If politicians and the press believe the individual on the throne has the power to intervene in times of crisis, they might well see some tactical advantage in breaking up inter-party talks during some crisis and make an appeal to the Palace. Any such prospect poses a real threat to the stability of the Monarchy, for if the royal Head of State ever used the prerogative against one of the two major parties of state, they would risk enforced abdication or republicanism.
The automatic nature of the Monarchy’s legal powers in no way diminishes the dignity and importance of the institution in terms of the functions they perform in national affairs. At home the Monarch serves as a symbol for the British state and performs wide-ranging social functions as Head of the Nation; they are head of the armed forces and the national churches; and they promote good citizenship and serve as the cypher for the award of honours. They conduct a unique brand of soft international diplomacy in their meetings with foreign Heads of State and in their role as Head of the Commonwealth.
This is a wide ranging and substantial national role for the Monarchy, which needs no added political functions to justify its existence today. Nonetheless, the Monarch’s confidential weekly audience with the Prime Minister offers an opportunity to engage in a private one-to-one discourse on public affairs if they wish. In Walter Bagehot’s well-known 1867 terminology, “the sovereign has, under a constitutional Monarchy such as ours, three rights – the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others.”
Bizarrely, the first edition of the Cabinet Manual in 2010 contained a garbled version of Bagehot’s dictum, despite its universal adoption elsewhere. The Manual expanded it into being, “entitled to be informed and consulted, and to advise, encourage and warn ministers” (para.1.5). In the century and a half since Bagehot, the political role of the Monarch has diminished, not expanded: the second edition of the Manual should be corrected, substituting Bagehot’s original wording.
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It is incorrect, as some have maintained, that any Head of State must necessarily retain some residual powers to deal with extraordinary or unexpected political circumstances that may arise. All that is necessary is to have clear rules to cover all eventualities that may arise, which this article maintains already exist, especially on prime ministerial appointment, the dissolution of Parliament, and royal assent.
As comparative constitutional law illustrates, there is a wide range of regulation governing powers akin to the direct prerogatives of the UK Monarch. The constitutional law of a state may expressly provide for a Head of State to exercise them at their discretion, or powers may be conferred on some another institution such as the legislature for voting a Prime Minister into office. Legislation can obviate the need for discretionary dissolution by providing for fixed parliamentary terms, and some constitutions in their laws or customs expressly prohibit personal action on the part of a ceremonial Head of State.
The rationale for drawing a clear distinction between discretionary and non-discretionary powers of any Head of State is obvious. This is that if the Head of State has a democratic basis or authority derived through election or a method of public appointment based on merit for a fixed term of office, then that country’s constitutional law may legitimately to most people’s minds provide for an element of discretion and independent judgement in the exercise of certain powers of state.
However, if a Head of State is selected by accident of birth and holds office for life, there are no sound theoretical grounds for institutionalising that office with a personal and discretionary decision-making power in the political process. This goes to the heart of the rationale for retaining a Monarchy altogether. It is defensible in the context of a modern democracy only if devoid of political power, and so exempt from the claim that political power should only be exercised with consent. And the constitutional framework in which a hereditary Monarchy operates must be capable of accommodating whatever the accidents of birth produce.
The constitutional realities of Monarchy in the UK, and the political system and relationships within which the institution operates, have now crystallised into the clear pattern of principles and practices set out in this post to govern the future. Today these obviate any need or desirability for the royal Head of State to possess any residual personal discretionary role. This evolution was consolidated in the long reign of Elizabeth II, and in a changing social and political context in which the old social and political class system with the Monarchy at its apex has evaporated, and concepts of democratic accountability and consent have become of greater importance than ever.
Clarity on the role of the Monarch in the exercise of the direct prerogative powers requires an accurate, not misleading, terminology that should explicitly recognise and emphasise their essentially automatic nature. The expressions “personal prerogatives” and “reserve powers” where they exist in our textbooks and works of reference, including the Cabinet Manual, should be immediately removed, replaced by the terminology of “formal” and “ceremonial” powers.
My thanks to Mike Gordon, Elin Weston, and David Torrance, for their comments on an earlier draft. A fuller journal article on this subject is to be published next year.
Robert Blackburn KC Hon, LLD, is Professor of Constitutional Law, King’s College London. He is a member of the Advisory Board of Halsbury’s Laws of England and editor of its titles on Parliament and Crown & Crown Proceedings.
(Suggested citation: R. Blackburn, ‘The Formal Powers of the Royal Head of State: Terminology, Concepts, and Practice’, U.K. Const. L. Blog (23rd November 2023) (available at https://ukconstitutionallaw.org/))