The Queen’s personal prerogative powers and a federal Britain (dream on)
Last week I wrote a letter to The Times. They didn’t publish it, so I will (if putting it in Ephems can be said to be publishing it). I copied it to a senior Opposition MP, a former senior minister, who replied that my proposals were quite startling and that he was not instantly persuaded (the exclamation mark after this had been added by his own hand). If my proposals are too startling to be persuasive with the new look Cameroonian Tories, a fortiori they are surely far too revolutionary for New Labour. So perhaps The Times was right not to waste its space on them. But I’m sufficiently big-headed to claim that they make a good deal of sense:
Sir, David Cameron’s initiative to review the workings of the royal prerogative (Tories would abolish PM’s power to declare war, February 6) is welcome and deserves all-party participation. But it’s surely a pity that he is excluding from examination the monarch’s few remaining personal powers, not exercised on the advice of ministers, to agree, or refuse, to grant a dissolution of parliament and to decide whom to call on to try to form a government in the event of a hung parliament (by no means inconceivable next time). It is grossly unfair to the monarch to burden him or her with such heavy and politically charged responsibilities and no available guidance on which officials or politicians he or she may properly consult, or even on the circumstances in which the powers should properly be exercised. It is cowardly to exclude these matters from review just for fear of being misrepresented by the tabloids as seeking to ‘strip the Queen of her powers’, when in reality any sensible monarch should be glad to be relieved of them by their transfer to a suitably impartial and transparent panel, guided in exercising them by principles laid down by statute.
Similarly, any worthwhile constitutional review needs to recognise the need for the UK, now messily half-way into an unsatisfactory semi-federal system with actual or embryo legislatures and governments in Scotland, Wales, Northern Ireland and London, to complete that process and evolve into a fully-fledged federation, in which the Westminster government and parliament become the federal government and legislature, with limited and defined powers for the whole of the United Kingdom, all other residual powers either devolved to the regional governments and parliaments or shared between them and the federal centre. No other solution to the West Lothian Question, such as preventing Scottish MPs from voting on certain kinds of Bills, is going to be worth tuppence or last more than a year or two. It’s time for our political leaders of all parties to show some courage by starting a serious national debate on the merits and implications of federalism and how best to adapt it to British circumstances.
If anyone has a better solution to the West Lothian Question, I have yet to hear it. Setting up a complicated rule-book to prevent MPs from various parts of the kingdom from voting on certain kinds of legislation affecting other parts of the kingdom can only end in farce, chaos, and extensive examples of the Law of Unintended Consequences (isn’t it the case, for example, that Labour has no majority of MPs representing English constituencies?). And if the next election produces no overall majority for any single party, with the LibDems likely to have the power to decide whether to put the then Labour Party leader or the then Conservative Party leader into No. 10 as prime minister, the Queen’s responsibility for deciding — without any obligation to seek ministerial advice, or, if she receives it, to act on it — whom to invite first to try to form a governmment will become an issue that we might regret having failed to tackle before it became a hot potato in the real political stewpot. The Queen might regret it even more. (And how interesting, no?, that David Cameron’s radical ideas about a constitutional review should explicitly exclude from discussion the most tricky, controversial and potentially dangerous of all the royal prerogative powers! Will a Gordon Brown government be any braver? Don’t bet the farm on it.)
As for the Federal Republic (oops) of Great Britain and Northern Ireland, it will no doubt be argued that there’s absolutely no interest in England in devolution to an archipelago of English Regions with their own legislatures and governments. But such an interest might grow quite rapidly if it became clear that the Regions, including Wales and Northern Ireland, would have at least as many powers over such subjects as education, health, crime and taxation as Scotland now enjoys, with the parliament and government at Westminster strictly limited in their own powers other than those for foreign affairs and defence. Politicans of all parties are currently preaching ’empowerment’ of local communities (while in the same breath voting overwhelmingly to deprive local communities of even the power to decide which of the local pubs should be able to allow smoking): let them put their money where their mouths are and strike out for full-blooded federation. Whatever happened to leadership? Ask a voter in Texas, Queensland or Bavaria whether she would favour handing over the powers of her State or Land to Washington DC, Canberra or Berlin, and see what sort of an answer you will get!
Hat-tip: to the splendid Professor Peter Hennessy who urged long ago, in vain, that the monarch’s personal prerogative powers should be rationalised and codified before the need to exercise them becomes a serious agenda item of huge potential embarrassment to whoever occupies the throne at the time, as well as perhaps triggering a major constitutional crisis with wholly unpredictable consequences.
Peter Hennessy >
Brian
Brian,
A very interesting piece. I have no specific view as to whether it would be appropriate for the appointment of a British Government in a hung Parliament to be done by ‘a suitably impartial and transparent panel, guided in exercising them by principles laid down by statute.’ I know that such is the British way. But may I mention how things are handled in Spain, where any assembly from the smallest municipal council to the Congress of Deputies is usually lacking in a clear majority? These assemblies are guided by their own internal standing orders and the procedure is that after an election the oldest member and the youngest member to have been elected get together to manage the appointment of the new government or council (municipal mayors and presidents of autonomous communities are appointed on the same principle as the national prime minister).
The usual procedure is that the party with the largest number of seats is given the first go at forming a government and if it fails the next is asked and so on; you no doubt will have read of this procedure taking place in other countries after elections. It quite often happens of course that the potential alliances are obvious, or even announced, in advance; and the majority party may recognise immediately that it is unable to form a government. The standing orders of these assemblies set a time limit within which this procedure has to be completed and if it is not, fresh elections are held. I cannot remember a case of such elections being required. Once the new mayor or PM has been invested by a vote of the assembly, he/she then has a further period of time in which to appoint ministers. The process takes time but in the period until the new government or municipal council is formed, the previous one continues to exist in an acting capacity and with powers that are clearly limited by known regulations; during that period – in fact from the moment the election is called – the media always refer to the Acting Prime Minister, and so on for the others. In the period after the last election, when PSOE took over, PP tried to stretch some things while it was still in the last few days of its power after the election, and I seem to remember that the courts were required to rule on whether what they were doing was legal.
The important point about this way of doing things is that the assembly establishes its own legitimacy in accordance with its own rules; in typical Spanish style, democracy is established from the bottom up with no need for outside authority to determine the nature of the government or council that will rule for the next four years; and that, rather than fairness to the monarch, is its great value to my mind. It is a democratic expression of popular sovereignty rather than parliamentary sovereignty. The resulting inter-party alliances are usually stable and the agreements between the parties are usually agreed and set down in writing.
The West Lothian Question is and always has been a red herring used by opponents of devolution; the only ways to avoid it are by equal federalism, as you suggest, or theoretically by total centralisation of government (and, incidentally, total centralisation with forced movement of medical staff is the only possible way of eradicating the postcode lottery in health services). The anomaly exists here: Catalonia has absolute control over its education system but Catalan deputies vote in Madrid about education in parts of Spain that are covered by the Ministry of Education and Science. The anomaly is sometimes mentioned, but is usually regarded as one of those things. One odd aspect of the famous Question, which must surely exist though I know of no specific example, is that Scottish MPs at Westminster can presumably vote on certain matters affecting Wales, while their Welsh colleagues at Westminster are unable to vote on the same matters with reference to Scotland.
Anyway, I repeat that your message is splendid. I’ll find the details of your local LibDems and ask them to contact you, shall I?
Brian writes: Thanks for a most interesting comment. I will resist the temptation to get into yet another debate about the pros and cons of a system likely to produce a hung parliament (or its equivalent in other elected and government-creating bodies) and the best procedures for dealing with it when it occurs: I think you and I agree, however, that the system in place in the UK (whereby the monarch is the sole and untrammelled referee and there is no consensus about when or how the monarch’s personal powers should be exercised) is deeply unsatisfactory and needs to be reviewed, not excluded from debate. But I’m afraid that the answer to your closing (and clearly rhetorical) offer must be ‘thanks, but no thanks’, as you will have expected. My loyalties, although sorely stretched, lie elsewhere….
I agree with you that the current asymmetrical federal system is one that desperately needs revision. It is hard to envisage a fair system that did not devolve power equally to regional governments. However, as a temporary patch to the West Lothian question, it seems sensible for regional MPs not to vote on bills which deal with areas that have been devolved within their own constituencies. Bills that covered some national and some regional topics, so it would be necessary for the government to parcel up legislation appropriately. In effect the English MPs would be the English Parliament, with MPs being elected to both bodies simultaneously.
I’m not sure why it would be a problem that Labour has no majority of MPs representing English constituencies – surely the point of a federal system is that regional governments can disagree with the national one.
Brian writes: The trouble with temporary patches to problems like this is that they have a nasty tendency to become permanent, because they remove the need and motivation to deal with the problem at its root. I also foresee difficulties with the ‘temporary’ system of regional voting bans over legislation that would apply only to England (of which there could be quite a lot if most major subjects had been devolved to the other UK Regions but not to English regions because of inertia in creating them) if, as you rightly say, the MPs for English constituencies became in effect the English Parliament but the Westminster government didn’t command a majority of them: they would constitute an English Parliament with a Tory majority but working with a Labour government at Westminster (since under this arrangement there would be no English legislature elected from among the English MPs). Liable to lead to paralysis, surely, or at best an unholy muddle .
I think it would also be pretty awkward if there were to be a Scottish constituency MP in No. 10 (and at least one possible candidate springs to mind!) who couldn’t himself vote on (say) education Bills affecting England and Wales but not Scotland. It would call into question the legitimacy of the prime minister being involved at all in such legislation or speaking on it in parliament. In practice this would give rise to a nonsense situation. But all these matters need to be aired and debated, and at present they aren’t even being thought about, as far as I can discover. Ostriches rule, OK?