Robert Saunders examines the role of the monarch as the ’emergency brake’ of the constitution in times of crisis. This piece is taken from UK in a Changing Europe’s new report, ‘The British Monarchy‘, co-published with the Constitution Unit.
For much of British history, it was hard to imagine a constitutional crisis without the monarch at its core. From the Barons at Runnymede imposing Magna Carta on King John to the expulsion of James II in 1688, the English (and, later, British) constitution was forged in the collision between Crown and Parliament. As late as the nineteenth century, suspicion of royal power pulsed through progressive politics. Victorians may have revered ‘Her Little Majesty’, but they also celebrated a ‘Glorious Revolution’ against royal tyranny and erected a statue of Cromwell outside Westminster.
With the decline of constitutional politics in the twentieth century, the political functions of the Crown slipped from public debate. Yet recent controversies have redirected attention to the role of the monarch at times of constitutional crisis. More specifically, they have reopened a question that deserves greater public discussion: who wields the historic powers of the Crown once the monarch is no longer politically active? Should there be any limit on their use by a Prime Minister?
An emergency brake
Some of the highest powers of the British state still technically reside with the Crown, including the right to declare war, conclude treaties and suspend Parliament. By convention, those powers are exercised ‘on the advice of the Prime Minister’. But they do not belong to the Prime Minister, and might, in theory, be withheld.
In 1950, the King’s Private Secretary, Alan ‘Tommy’ Lascelles, published a letter in The Times, identifying three circumstances in which a monarch might refuse a request to dissolve Parliament (a ‘prerogative power’ before and after the 2011-2022 Fixed-Term Parliaments Act). The ‘Lascelles Principles’ suggested that the monarch might reject a Prime Minister’s advice if the existing Parliament was still viable; if an election would be detrimental to the economy; or if an alternative Prime Minister could secure a ‘working majority’ without an election.
It is not difficult to envisage other circumstances in which a monarch might prevent an abusive dissolution: for example, when the opposition was engaged in a leadership contest; when it was intended to frustrate parliamentary scrutiny; or when electoral fraud was suspected.
Underpinning all this was a new idea of the monarch’s role, which established the Crown as the ‘emergency brake’ of the constitution. A monarch could not exercise the prerogative powers him or herself but could deny their use to a Prime Minister. The Crown would act as a safety lock on the ‘nuclear weapons’ of the constitution, such as the power to declare war or suspend Parliament.
That brake was never wholly satisfactory. It relied on one person, with no democratic authority, who might be inept, corrupt or Prince Andrew. As Britain evolved from a ‘constitutional’ to a ‘ceremonial’ monarchy, it grew ever less likely that a monarch would actually use it. The priority for the Palace became to shield the monarch from ‘political controversy’, not to shield the constitution from political abuse.
From a democratic perspective, the reluctance of the monarchy to interfere in ‘politics’ is broadly welcome. A democracy should not depend on a hereditary institution to protect it from the abuse of power. But it raises an important question: who, if anyone, should take over its constitutional functions?
Under the UK constitution, a Prime Minister can take office with no majority in Parliament and no direct electoral mandate, following a vote among party members. It would be curious if there were no limit on their power to declare war, sign treaties, or suspend Parliament. So, who now holds the brake?
For a period, it seemed that the powers of the Crown were to be transferred to Parliament. The Fixed-Term Parliaments Act required MPs, not the monarch, to consent to an early dissolution. Both Tony Blair and David Cameron sought parliamentary approval for the use of armed force in Iraq and Libya respectively (though Theresa May sought to roll this back).
In other areas, the courts have intervened. In 2019, the Supreme Court declared an ‘improper’ prorogation of Parliament to be ‘null and of no effect’. It was now the Courts, not the monarch, that were acting as the ‘emergency brake’.
Taking back control
Since 2019, the direction of travel has reversed. The 2022 Dissolution and Calling of Parliament Act shut down any role for Parliament in preventing an early dissolution and declared the revived prerogative powers to be nonjusticiable by the courts. That left only the monarch as a check on their use, and the government’s ‘Dissolution Principles’, published alongside the Bill, reminded the monarch that they should never be drawn into political controversy. As the Bill’s ‘Explanatory Notes’ made clear, the intention of the Act was to ‘enable Governments … to call a general election at the time of their choosing’.
Those notes did acknowledge that, ‘in certain exceptional circumstances, the Sovereign could refuse to grant a dissolution’. Yet what those circumstances might be remained wholly unclear. That question became urgent in the summer of 2022, when it appeared that a Prime Minister might request a punitive dissolution, ending the parliamentary session and triggering a general election, in the face of rebellion from his cabinet and parliamentary party.
What might have happened in that scenario remains opaque, though it was rumoured that the Queen would have been temporarily ‘unavailable’. Constitutional lawyers could only speculate on Twitter – not just about what a 96-year-old woman might do, but about the principles on which she would reach her decision. That leaves the constitution unprotected, and risks miring the monarch in political controversy.
In a democracy, the monarchy can only survive if it stands outside political contention. Yet that makes it a broken reed when it is the constitution itself that is in crisis.
The logic of this situation is not that the monarch should be more politically active, but that we cannot rely on a ceremonial monarchy to protect the constitution from attack. For that, other instruments will be needed.
In their absence, both the constitution and the monarchy will suffer: one from the lack of effective protections; the other from political pressures that it lacks the democratic authority to navigate.
By Dr Robert Saunders, Co-director, Mile End Institute, Queen Mary University of London.
This piece is the first in a series of articles taken from UK in a Changing Europe’s new report, ‘The British Monarchy‘, co-published with the Constitution Unit.