The monarchy and the Royal Prerogative

  • Created by: phoebs.b
  • Created on: 01-04-18 21:40

Walter Bagehot, The English Constitution (1876) - described the sovereign's rights as;

  • the right to be consulted
  • the right to encourage; and
  • the right to warn. 

Sir William Heseltine - was the Queen's Private Secretary, and wrote to The Times in 1986 when they reported that there were disagreements on policy between the Queen and the Prime Minister (then Mrs Thatcher) and made 3 points.

  • Firstly, the Queen has to right to be consulted, to encourage and to warn the Government. She is entitled to have opinions on government policy and to express these to her chief minister.
  • Secondly, whatever personal opinions the Monarch has, they are bound to act on the advice of her ministers.
  • Thirdly, the sovereign is obliged to treat her communications with the Prime Minister as entirely confidential between the two of them.

Rodney Brazier, Constitutional Principles, 3rd edn, (1999) - chapter 3 says that the monarch's legal power to appoint a Prime Minister must be used to enhance the democratic process rather than pre-empt it. So far as possible, the monarch must keep out of the process of government formation. Where there is a hung parliament, the monarch should stand back and let elected politicians decide the shape of the government. If the politicians fail to produce a way forward in a hung parliament the monarch might receive each of the party leaders in turn. Brazier concludes that if a majority coalition government is proposed, rather than the more usual outcome in a hung parliament of a minority government taking office, then such a coalition should only be appointed if the party leaders can work out the details and present an agreement to the monarch. The monarch's legal right to refuse the Royal Assent still exists, but must be exercised in a way which is compatible with the political principle of democracy. The modern constitution ought to require political decisions and the responsibility for them, to be taken by politicians, and (where appropriate) the electorate, and not the head of state. If a bill seeks to undermine the democratic basis of the constitution the monarch should either grant the Royal Assent under vigorous private protest or insist on a dissolution of Parliament and a General Election. 

Robert Blackburn, 'The Royal Assent to Legislation and a Monarch's Fundamental Human Rights' (2003) and 'Monarchy and the Personal Prerogative' (2004) - suggests two possible answers to the question raised of whether the Monarch can refuse to give the Royal Assent to a Bill as it would be a violation of their human rights, due to the Human Rights Act 1998 coming into force. The first answer is opened up by the Human Rights Act 1998 itself and the Regency Acts 1937-1953. The second answer focuses on the meaning of 'Royal Assent'. The monarch could either declare that they are not available for the performance of their duties as head of state, due to fundamental human rights grounds of conscience so that a regent could be temporarily appointed for…

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