'I Saw Two Shooting Stars Last Night': Caution Against Wishing for Constitutional Reform of the UK Royal Prerogative

Abstract

It had been assumed since the late 1980’s that the UK was marching slowly, but definitively, towards electoral reform. It was further assumed that such reform would predicate a review of the prerogative powers of the UK monarch. Although electoral reform has been decisively rejected the desire to formalise the powers of the Crown remains. This paper will argue against that imperative. The ongoing trend to reform in this area can be seen in the Fixed-term Parliament Bill but is also visible in the UK Cabinet Office Manual. These attempt to codify the prerogative rules in the event of a hung parliament so as to avoid the monarch becoming embroiled in political controversy. However, formalisation does not achieve that end – as a review of other common law jurisdictions demonstrates. Attention will be drawn to Canadian prorogation crises of the Stephen Harper government in 2008 and 2010 and to the 1963 decision of the Privy Council in relation to the powers of the Governor general of western Nigeria.

Ultimately, rather than ameliorating the potential for political controversy around the monarch we ought to step back from piecemeal constitutional reform. Bagehot warned that following King William IV UK monarchs would be wise to leave matters of parliament to Parliament – but this is not always possible. Rather than attempting to immunize the Crown from moments of constitutional discomfort we should acknowledge its constitutional function.

When it comes to institutional design piecemeal reform is the equivalent of wishing on a satellite and hoping that it was a shooting star – it is misjudged and futile.

Keywords: Politics, Law, Parliament, Prorogue, Royal Prerogative, Reserve Powers, Fixed-term Parliaments Bill

JEL Classification: K10, K00