return to top page The Royal Prerogative
by
William Shepherd
first published on the web in April 2004A Short History of the Commonwealth
In England the royal prerogative is the way centralised Government bypasses Parliament. These princely prerogatives are what Oliver Cromwell's New Model Army left in the royal domain after grabbing the things that mattered for their Short, Long and Barebone Parliaments.
Oliver Cromwell was born in 1599 and at the age of 40 he was elected to represent Cambridge City in the Short Parliament of April 1640. He continued to serve in the Long Parliament convened in August 1640 and took a leading role in that parliament's refusal to bail out the bankrupt King Charles I, eventually stripping him of his power, taking control of fiscal policy and placing the army and navy under parliamentary control.
Within two years a Civil War was waging throughout the land with families divided and royalist Cavaliers and parliamentarian Roundheads at daggers drawn. Out of the skirmishing the Puritans emerged victorious, cut off the king's head and after an interlude with the Barebones Parliament appointed Cromwell as Lord Protector of England ruling with the help of a single-chamber parliament. It was not long before the expense of a standing army and the cost of the trade war with the Dutch brought Cromwell to his knees too. Nations need finance as well as firepower if they are to undertake glorious action. Cromwell died in 1658 and two years later the monarchy was restored.
The immediate legacy of the English Civil War was a constitution in which the King in Parliament was the glue that bound together the monarchy and the three branches of government: the legislature, the administration and the judiciary. Before the English Civil War the princes in Shakespeare's Sceptered Isle did not rule unfettered. There was a written constitution imposed by provincial barons on King John at Runnymede called Magna Carta. But mostly the princes were constrained by the unwritten Common Law and the rights derived from it which were dutifully upheld most of the time by a semi-independent judiciary.
Royal Wars
Since the restoration of 1660, English Parliaments have had their work cut out expanding empires by triangulating their trade (slaves, sugar, opium etc.), enclosing common lands for sheep grazing and building dark satanic mills to enhance company profits. They never got round to swans. Swans remain a Royal Prerogative. Were it just a swan here or a pigeon there, this limited use of the royal prerogative might have provided a salutary antidote to the works of Parliament. But this was not the case.
In 2003 democrats in the country and in Parliament were not amused when the Government sent troops to Iraq on the back of a dodgy dossier and a failed United Nations resolution. The democratic will of both the people and their Parliament were against the invasion of Iraq and the setting up of NATO military bases in Mesopotamia to defend Jewish settlements in Palestine. To avoid a split in the governing Labour Party the Blair-Brown Government wisely allowed them a Commons debate, which the Government duly won with the support of the traditionally jingoistic Tory Party. But they showed a peculiar reluctance to make public the legal advice they had received for declaring war. Why? Right first time. Declaring war remains a royal prerogative.
The Queen, not Parliament, declares war. The Government reasoned that to admit this publicly would open up a can of worms. After all King Charles III might turn out to be somewhat less compliant than Queen Elizabeth II on such matters. Indeed the next English Civil War may be fought on such an issue. So the Government refused to publish its legal advice and sent in the smoke and mirrors department to cover up their real reason for doing so with talk of dossiers and resolutions, anthrax and Al-Quaida.
This is not a new development. Down the centuries Governments have sought to claim royal prerogatives for themselves at every opportunity. Sometimes Parliament, the legislative branch, has rapped the Government's knuckles. Othertimes winks in the clubs of St. James and threats of honours denied have done the trick and brought the Government to heel.
Liberty & Constitutions
No serious attempt has yet been made to create new royal prerogative powers. But the judicial branch has stealthily moved the goalposts by means of a device they refer to as codification. A recent example was persuading John Major's Government to put control of the country's secret police on a statutory basis. This detached the Intelligence Services from the Royal Prerogative under Privy Council scrutiny and placed them under the most cursory means of Parliamentary scrutiny…secret budgets and a Home Secretary standing up in Parliament once a year to inform the house that all is well…a classic Yes Prime Minister manoeuvre by the government establishment.
All this will strike Americans as very strange indeed. Freedom and democracy to an American means the Declaration of Independence of 1776, the American Constitution of 1786 and the Bill of Rights. Enshrined in these written documents is a concept much praised by Alexis de Toqueville in Democracy in America of the separation of powers between the legislature, the judiciary and the administration.
There are other models. The British have one. Napoleon has given France another. Unfortunately the various models tend to be mutually exclusive. In the current British version, for instance, Parliament is supreme because the three branches of government all meet here while the monarch provides a fourth party to the democratic settlement as The Queen in Parliament. The birth of the British Constitution was every bit as dramatic as that of the American Constitution and was played out over two decades in like manner. Constitutionally speaking 1640 to 1660 means to the English what 1770 to 1790 means to the Americans. These were the years of struggle from which a settlement eventually emerged.
With an ignorance of history that beggars belief for a party grounded in the history of the struggle of the working man against tyranny and overweening government, the British Government is currently making a complete dog's dinner of constitutional arrangements in the United Kingdom with ill-thought out constitutional reforms that ignore the rights, powers and traditions of the judiciary, the legislature and the monarchy.
Meanwhile the European Government-in-Waiting in Strasbourg seeks to impose the Napoleonic model on these offshore islands by giving a political court in Luxembourg the job of refereeing the game on the basis of the criteria of whether or not a particular measure leads to ever-closer union.
King's Court or Law Court
Royal prerogative powers sit somewhat uncomfortably alongside the official establishment consensus. During the 1980s and 1990s the Thatcher/Major Conservative Governments adopted the techniques of constitutional creep to codify prerogative powers into statutory powers. Since coming into office in 1997 the Blair-Brown New Labour Governments have accelerated the process of expanding statutory powers at the expense of prerogative powers.
Over the past ten years the judiciary have increasingly questioned the manner in which government has been wielding its royal prerogative powers on the monarch's behalf. Apart from using the royal 'make war and peace' prerogative to send young men to their death in far-off countries, the judiciary has expressed concern on the use of the royal prerogatives to 'maintain the lord's peace' and 'make treaties'.
In the British constitutional settlement statutory powers derived from legislation by the Queen in Parliament and royal prerogative powers are what is left over. The two sets of powers work in harness. A good example is the symbiotic relationship between an extradition treaty created using prerogative powers and the act of extradition itself which uses statutory powers derived from an Act of Parliament.
With no new royal prerogative powers being created and an ever-increasing conversion of prerogative power to statutory power the balance has shifted alarmingly in recent years. Is this by design or default? If by design then to what end and for what purpose? If by default then what are the consequences?
With the European Constitution looming on the horizon these are no longer esoteric questions of jurisprudence. The rule of law is not the same as the rule of lawyers. The letter and the spirit of the law are not the same thing. Power shifts as prerogative powers becomes statutory powers and power flows only one way at a time. Judges may still wield power and exercise judgement. But the quality of their justice will change. Instead of looking at the principles behind a particular application of the law (fairness, equity, rights, duties etc) judges will administer the letter of the law.
This country is embarking upon a course of replacing the benevolent despotism of the King's Court with the malignant tyranny of the Law Court. Is this the route we want to go? In the final analysis the supremacy of the King in Parliament is incompatible with a written constitution.
You have been warned.
This essay was first published in 2004 as further commentary on remarks in The Politics of the English Pound
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