Conventions

Let’s be honest about this. National leaders are rarely shrinking violets. They have navigated the highways and byways of government to reach the very top of the political ladder. There are thousands of people who have run for Parliament, but only 650 sit in the House of Commons. Many MPs become mere footnotes in (local) history – but Members of the Cabinet have risen through the ranks to reach the very top. That takes a certain amount of toughness – and ability to see off competitors.


This is important to remember when the power of conventions in the British system is considered. These very powerful people feel constrained to obey conventions – even though the convention may stop them achieving their goals, and despite the fact that conventions are, by definition, unenforceable by the Courts.

So why are they obeyed? Political Scientists treat politicians (and other constitutional players) as economic actors. Their behaviour is determined by their wish to gain and maintain power (see David Mayhew on “Congress the Electoral Connection”). It would be nice, though sadly naïve, to imagine that conventions are kept purely out of respect for tradition. They are observed because the costs of breaching a convention are greater than the benefits to be gained. The convention that the Monarch always gives the Royal Assent to bills passed by both Houses of Parliament keeps the Monarchy safe from republicanism. The short term advantage for a Queen or a King of refusing Assent would be bought at the cost of political controversy that could ultimately end in the removal of an unelected hereditary post filled by virtue of birth not merit. Even if the refusal to grant Assent were popular on that particular issue – people would be concerned that the Monarch could thwart the popular will at any time. The costs of killing a convention could return to haunt the person who did it. A Prime Minister could refuse to resign after losing a vote of confidence – but probably at the expense of tearing his party apart. The advantages of upholding conventions may be long term – but they are great.

For almost a hundred and fifty years there was a “convention” that US Presidents would hold the office no longer than the two terms that Washington himself served. When FDR ‘broke’ this convention, it was turned into a constitutional requirement (22nd Amendment). The flexibility – which could have been useful should the end of a two-term presidency come at a time of extraordinary crisis – has been lost. The flexibility within the British constitution is highly prized – and powerful leaders know that it could be costly to give it up for mere short term advantage.

Conventions

...Not the ones that are held by political parties (in Britain we call them "Party Conferences" - the first one starts today) - or the preparatory meetings held in order to write a Constitution, but the ones which are an important source of the British Constitution.

Washminster posts on "conventions" - which may be useful for revising "Constitutional Law", as many of my Open University students are doing now! include -

Conventions
Conventions relating to Hung Parliaments
The Queen's Private Secretary
Checks and Balances
The Monarchy

The key things to know about conventions are

1 Definition - non-legally binding (in other words they would not be enforced by the Courts) - but which the political actors regard themselves as bound by.

2 Examples - (1) that the Queen always gives the Royal Assent to bills passed by Parliament (2) the Queen appoints as Prime Minister, the person most likely to command a majority in the House of Commons (3) the Prime Minister is a Member of Parliament (4) Judges do not play an active part in political life.....

3 Their relationship to the Royal Prerogative - conventions apply to many of the uses of the prerogative.

There is an excellent section on conventions in Hilaire Barnett's book - "Constitutional & Administrative Law" (pictured)

Royal Prerogative - why not hand everything over to Parliament?

A written question was submitted by Lord Lester of Herne Hill

To ask Her Majesty's Government why their Final Report on the Review of the Executive Royal Prerogative Powers does not propose placing all executive prerogative powers identified in the report under parliamentary authority. [HL6204]

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): The Government believe that to place all the executive prerogative powers under specific parliamentary authority without detailed consideration of individual powers would considerably increase uncertainty, delay and the risk of legal challenges, to no significant advantage. Ministers are already accountable to Parliament for the exercise of all executive prerogative powers. The Government consider that there is nevertheless a case to be made for reform of some individual powers in order to increase the level of parliamentary scrutiny and control. For example, the Constitutional Reform and Governance Bill would place management of most of the Civil Service on to a statutory footing and would increase the level of parliamentary scrutiny of treaty-making. The Government will also propose a parliamentary resolution dealing with the commitment of Armed Forces to armed conflict overseas.

The Royal Prerogative

The Ministry of Justice has just published a list of royal prerogative powers

Ministerial prerogative powers

Government and the Civil Service

Powers concerning the machinery of Government including the power to set up a department or a non-departmental public body

• Powers concerning the civil service, including the power to appoint and regulate most civil servants
• Power to prohibit civil servants and certain other crown servants from issuing election addresses or announcing themselves, or being announced as, a Parliamentary candidate or a Prospective Parliamentary candidate
• Power to set nationality rules for ‘non-aliens’ – British, Irish and Commonwealth citizens – concerning eligibility for employment in the civil service
• Power to require security vetting of contractors working alongside civil servants on sensitive projects
• Powers concerning the Office of the Civil Service Commissioners, the Security Vetting Appeals Panel, the Office of the Commissioner for Public Appointments, the Advisory Committee on Business, the Civil Service Appeal Board and the House of Lords Appointments Commission, including the power to establish those bodies, to appoint members of those bodies and the powers of those bodies

Justice system and law and order

• Powers to appoint Queen’s Counsel
• The power to make provisional and full order extradition requests to countries not covered by Part 1 of the Extradition Act 2003
• The prerogative of Mercy
• Power to keep the peace

Powers relating to foreign affairs

• Power to send ambassadors abroad and receive and accredit ambassadors from foreign states
• Recognition of states
• Governance of British Overseas Territories
• Power to make and ratify treaties
• Power to conduct diplomacy
• Power to acquire and cede territory
• Power to issue, refuse or withdraw passport facilities
• Responsibility for the Channel Islands and Isle of Man
• Granting diplomatic protection to British citizens abroad

Powers relating to armed forces, war and times of emergency

• Right to make war or peace or institute hostilities falling short of war
• Deployment and use of armed forces overseas
• Maintenance of the Royal Navy
• Use of the armed forces within the UK to maintain the peace in support of the police or otherwise in support of civilian authorities (eg to maintain essential services during a strike)
• The government and command of the armed forces is vested in Her Majesty
  Control, organisation and disposition of armed forces
• Requisition of British ships in times of urgent national necessity
• Commissioning of officers in all three armed forces
• Armed forces pay
• Certain armed forces pensions which are now closed to new members
• War pensions for death or disablement due to service before 6 April 2005 (section 12 of the Social Security (Miscellaneous Provisions) Act 1977 provides that the prerogative may be exercised by Order in Council
• Crown’s right to claim Prize (enemy ships or goods captured at sea)
• Regulation of trade with the enemy
• Crown’s right of angary, in time of war, to appropriate the property of a neutral which is within the realm, where necessity requires
• Powers in the event of a grave national emergency, including those to enter upon, take and destroy private property

Miscellaneous

• Power to establish corporations by Royal Charter and to amend existing Charters (for example that of the British Broadcasting Corporation, last amended in July 2006)
• The right of the Crown to ownership of treasure trove (replaced for finds made on or after 24 September 1997 by a statutory scheme for treasure under the Treasure Act 1996)
• Power to hold public inquiries (where not covered by the Inquiries Act)
• Controller of Her Majesty’s Stationery Office as Queen’s Printer:
• the power to appoint the Controller
• the power to hold and exercise all rights and privileges in connection with prerogative copyright
• Sole right of printing or licensing the printing of the Authorised Version of the Bible, the Book of Common Prayer, state papers and Acts of Parliament
• Power to issue certificates of eligibility in respect of prospective inter-country adopters (in non-Hague Convention cases)
• Powers connected with prepaid postage stamps
• Powers concerning the visitorial function of the Crown
  

Other prerogative powers

Constitutional/personal prerogatives of the Monarch

• Appointment and removal of Ministers
• Appointment of Prime Minister
• Power to dismiss government
• Power to summon, prorogue and dissolve Parliament
• Assent to legislation
• The appointment of privy counsellors
• Granting of honours, decorations, arms and regulating matters of precedence.
• Queen’s honours – Order of the Garter, Order of the Thistle, Royal Victorian Order and the Order of Merit
• A power to appoint judges in a residual category of posts which are not statutory and other holders of public office where that office is non-statutory
• A power to legislate under the prerogative by Order in Council or by letters patent in a few residual areas, such as Orders in Council for British Overseas Territories
• Grant of special leave to appeal from certain non-UK courts to the Privy Council
• May require the personal services of subjects in case of imminent danger
• Grant of civic honours and civic dignities
• Grant of approval for certain uses of Royal names and titles

Powers exercised by the Attorney General

• Functions in relation to charities
• Functions in relation to criminal proceedings – including the power to enter a nolle prosequi
• Functions in relation to civil proceedings – including the ability to institute legal proceedings to protect a public right at the relation of a person who would otherwise lack standing (relator proceedings)

Archaic prerogative powers
( It is unclear whether some of these prerogative powers continue to exist. )

• Guardianship of infants and those suffering certain mental disorders
• Right to bona vacantia
• Right to sturgeon, (wild and unmarked) swans and whales as casual revenue
• Right to wreck as casual revenue
• Right to construct and supervise harbours
• By prerogative right the Crown is prima facie the owner of all land covered by the narrow seas adjoining the coast, or by arms of the sea or public navigable rivers, and also of the foreshore, or land between high and low water mark
• Right to waifs & strays
• Right to impress men into the Royal Navy
• Right to mint coinage
• Right to mine precious metals (Royal Mines); also to dig for saltpetre
• Grant of franchises, e.g. for markets, ferries and fisheries; pontage & murage.
• Restraining a person from leaving the realm when the interests of state demand it by means of the writ ne exeat regno
• The power of the Crown in time of war to intern, expel or otherwise control an enemy alien

Legal Prerogatives of the Crown

The legal prerogatives of the Crown are powers that the Monarch possesses as an embodiment of the Crown. Sometimes described as Crown "privileges or immunities", these prerogatives have been significantly affected by statute - in particular, the Crown Proceedings Act 1947.

• Crown is not bound by statute save by express words or necessary implication
• Crown immunities in litigation, including that the Crown is not directly subject to the contempt jurisdiction and the Sovereign has personal immunity from prosecution or being sued for a wrongful act
• Tax not payable on income received by the Sovereign
• Crown is a preferred creditor in a debtor’s insolvency
• Time does not run against the Crown (ie no prescriptive rights run)
• Priority of property rights of the Crown in certain circumstances

The whole report on the Royal Prerogative is available here.

The GCHQ Case

Just before Christmas 1983, Mrs Thatcher - who was hostile to Trade Unions - ordered that the terms and conditions of civil servants working at GCHQ be revised so as to exclude membership of any trade union other than a departmental staff association approved by the director of GCHQ.

The Unions, representing their members who faced a stark choice - quit their union - or give up their job - brought an action for Judicial Review. They were challenging the decision of the Minister (in this case the Prime Minister) to alter the terms of conditions of the staff at GCHQ. The power to make that decision arose not from statute, but was part of the Royal Prerogative.

Full judgment available here

The decision is important for a number of reasons -

• It establishes that decisions taken under the Royal Prerogative can be subject to Judicial Review
• It sets out the three headings of Judicial Review (Illegality; Irrationality & Procedural Impropriety) - [a fourth 'Breach of Convention Right' results from the Human Rights Act 1998]
• National Security can override other rights

Parliamentary Approval for Deploying the Armed Forces

The House of Commons Library has published an excellent Research Paper introducing the issues involved in Parliament's approval for the deployment of the armed forces - which is likely to be part of the constitutional reforms given effect this session.

The paper begins which some useful definitions and explanations of the Royal Prerogative.

The Paper is available at
http://www.parliament.uk/commons/lib/research/rp2008/rp08-088.pdf

The Royal Prerogative

Actions by the Executive (Ministers) derive their authority from either Parliament - [Statute or delegated legislation] or from the Royal Prerogative. Dicey once described the latter as "the remaining portion of the Crown's original authority, and is therefore...the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact execised by the Queen herself or by her Ministers"

In practice most powers are exercised by Ministers - even those personally exercised by the Monarch are done on advice of Ministers, or according to established conventions. The Public Administration Committee in the House of Commons produced a report on the Royal Prerogative http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/422.pdf.

Reform of the Royal Prerogative forms a major plank of the Government's proposals for constitutional renewal. Relevant documents can be accessed at http://governance.justice.gov.uk/

In the GCHQ case (Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374) the House of Lords held that the Courts could review the use of the Royal Prerogative.

The Monarchy

Lord Taverne will ask the Government at question time "whether they plan to review the constitutional role of the monarchy". It's an interesing question on a number of levels. While in practical terms the monarch has very limited powers (Conventions govern the use of her powers - Bills which have been passed by both Houses of Parliament must be signed by the Monarch to become law, but by a 300 year old convention the Monarch doesn't refuse; the Queen "chooses" her Prime Minister - but her choice is limited by convention) - the Monarchy is central to the system.

Parliament is called by the Monarch - and each session she tells members of both Houses in the 'Queen's Speech' what she would like them to consider (the speech is written by the Government); She dissolves Parliament (on the advice of the Prime Minister). It is "Her Majesty's Government" (often called HMG); We refer to the Queen's courts and judges.

The question could touch on the so-called 'Royal Prerogative' - defined by Dicey as "... the remaining portion of the Crown's original authority, and it is therefore ... the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers". Key parts of the Prerogative are the subject of proposals for reform. (for further details see http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf and the follow up documents on http://governance.justice.gov.uk/).

There aren't many Republicans in the House of Lords - but it might provoke some interesting exchanges.