Constitutional Implications of the Cabinet Manual

Written evidence submitted by Gerard W. Horgan

Introduction

1. This evidence is submitted by Gerard W. Horgan, D.Phil. (Oxon.), Honorary Research Associate in Political Science, University of New Brunswick, Canada.

2. This submission relates primarily to the second aim for the solicitation for comments on the Draft Cabinet Manual; i.e., to check that the draft covers the issues which need to be covered. More specifically, it relates to the Sovereign's reserve powers: the extent thereof, and the conventions regarding their exercise.

3. The primary goals of this submission are to recommend that the Cabinet Manual: be amended to include a reference to a general reserve power of the Sovereign to act in the case of unconstitutional actions by the Ministry; be amended in regard to its references to the prorogation of Parliament. The submission deals with these two issues separately, before turning to a concluding comment.

The Draft Cabinet Manual Regarding the Sovereign's Reserve Powers

4. The most pertinent passages regarding the Sovereign's Reserve Powers currently contained in the Cabinet Manual are as follows. Paragraph 6 notes:

The Sovereign is the Head of State of the UK, providing stability, continuity and a national focus....The Sovereign retains prerogative powers but, by constitutional convention, the majority of these powers are exercised by, or on the advice of, his or her responsible ministers, save in a few exceptional instances, (the 'reserve powers'). Paragraphs 58 and 59 of Chapter 2 are examples of the Sovereign's 'reserve powers'.

Paragraph 58 refers to the reserve power in relation to the dissolution of Parliament, while Paragraph 59 notes:

Although they have not been exercised in modern times, the Sovereign retains reserve powers to dismiss the Prime Minister or make a personal choice of successor, and to withhold consent to a request for dissolution. However, there is a duty on the Prime Minister to act in a way that prevents the Sovereign being drawn into political controversy by having to exercise those reserve powers.

5. While Paragraph 6 notes that Paragraphs 58 and 59 are only "examples", it is the position of this submission that the existence of a broad reserve power should be acknowledged. While an exhaustive review of the literature lies beyond the scope of this submission, perhaps a few authoritative references will be illustrative.

Evidence for a Broad Reserve Power of the Sovereign

6. Discussion of reserve powers makes little sense prior to the middle of the 19th Century. This is because, before Responsible Government was clearly achieved, the Sovereign exercised a wide range of the prerogative powers.

7. Keith (1936) asserts a role for the Sovereign "As the Guardian of the Constitution". (183) He notes that "The Crown remains in fact an authority charged with the final duty of preserving the essentials of the constitution." (183) However, he is less forthcoming as to how that duty might be reflected in the reserve powers.

8. Jennings (1959) argues that, in exceptional circumstances the Sovereign could legitimately refuse assent to a policy "which subverted the democratic basis of the Constitution, by unnecessary or indefinite prolongations of the life of Parliament, by a gerrymandering of the constituencies in the interests of one party, or by fundamental modification of the electoral system to the same end. She would not be justified in other circumstances." (412)

9. Bradley (1977) notes that "The smooth working of British government depends on a large measure of implicit agreement between the parties and their leaders about the rules and understandings of the parliamentary and political contest. If one side or its leader acts in breach of that agreement, personal intervention by the Sovereign might in exceptional circumstances be justifiable on constitutional grounds; whether it would succeed in its aims is a different matter altogether." (229)

10. Street (1981) states that "If the normal machinery of democratic government breaks down, the monarch's ill-defined residuary discretionary powers may have to be exercised in novel or highly unusual circumstances. Obviously personal interventions of this kind may imperil the status of the monarchy; they are therefore justifiable only as the least of evils." (123)

11. Bogdanor (1996) notes: "It may seem that there is no obvious point at which the limitation of the power of the constitutional monarch should stop. That limit is reached, however, at the point at which the constitution itself, which determines the role of the head of state, comes to be subverted by political leaders. At that point the sovereign has the right (some would say duty) to exercise her discretion to ensure that the values which lie at the foundation of a constitutional system are preserved. For the doctrine that the sovereign is required to act on the advice of her ministers presupposes that ministers themselves act within the framework of constitutional government." (413)

12. Brazier (1999) avers that: "In a grave constitutional emergency of a kind which, in truth, we will probably never see, the Queen's prerogative reserve powers would have to take the centre of the stage....I think that caution dictates that these powers should be retained – but, again, I want to suggest that decision-making be diverted to political authority....Only if the political process were to fail would the Head of State, as the final arbiter of the constitution, have to act as best she could." (343-4) Additionally, "to put things at their lowest, just occasionally a neutral umpire, outside party politics, is needed to resolve a constitutional impasse." (362)

13. Finally, it is worth noting that the House of Commons Public Administration Select Committee, in a 2004 Report, included in the "personal discretionary powers" of the Sovereign, a power "(in grave constitutional crisis) to act contrary to or without Ministerial advice." (UK, 2004, para. 5; parentheses in original)

Discussion

14. The opinions of these learned sources indicate that there has been a belief that a reserve power - ill-defined and only to be used in extreme circumstances – has existed. As some of these sources are quite recent, it seems reasonable to conclude that there are those who believe this power still exists. Indeed, Brazier indicated as much in his written evidence to the Political and Constitutional Reform Committee in relation to its inquiry regarding the Cabinet Manual. (UK, 2011b, p.13, para 6)

15. To the degree that "the Cabinet Manual is intended to record the present position", it would seem that some reference to such a reserve power should appear in the Cabinet Manual.

16. It might be argued: that the power never existed, and that the learned sources were mistaken; that the power existed in the past, but no longer exists; or that the power may still exist, but should not exist. It is not the purpose of this submission to attempt to resolve such questions. Rather, the purpose is to draw attention to the question, so "that the draft covers the issues which need to be covered".

17. Given the highly sensitive nature of such a power, some might argue that, even if it does exist, it should not be publicized. Protection of the Sovereign from involvement in political affairs is a significant theme in the Draft Cabinet Manual, and a laudable goal. However, it is the position of this submission that the Cabinet Manual can best serve its overall goal of "greater transparency" by acknowledging the existence of such reserve powers as are believed to exist, but then immediately indicating that their use would only occur as a result of failures by political actors.

Recommendation

18. The Cabinet Manual should be amended to recognize the existence of a reserve power of the Sovereign to act to defend constitutional values. The section noting this power should include a statement similar to that in Paragraph 59, i.e., 'There is a duty on the Prime Minister and all other senior political actors to act in a way that prevents the Sovereign being drawn into political controversy by having to exercise this reserve power.'

The Draft Cabinet Manual Regarding Prorogation of Parliament

19. While prorogation is mentioned a number of times in the Draft Cabinet Manual, the most pertinent entries are the following. At paragraph 65, it is noted: "Prorogation brings a parliamentary session to an end. It is the Sovereign who prorogues Parliament on the advice of his or her ministers." At paragraph 108, it is stated:

Prerogative powers may be divided into the following broad categories:

· Constitutional or personal prerogatives: these are the powers that the Sovereign continues to exercise either personally or on the advice of the Government. They include the powers to: appoint and dismiss the Prime Minister and other ministers; grant assent to legislation; and prorogue and dissolve Parliament.

Discussion

20. The statement at paragraph 65 appears to admit of no question as to whether there is any reserve power in regard to prorogation: the Sovereign acts "on the advice of his or her ministers", full-stop.

21. I gather from comments by Lord Hennessey, in Oral Evidence before the Political and Constitutional Reform Committee, regarding a conference at Ditchley Park in November, 2009, (UK, 2011a, reply to Question 9) and from a synopsis of the conference discussions by the Ditchley Director, (Ditchley, para. 16) that the authors of the Draft Cabinet Manual are well aware of the political crisis involving prorogation of the Canadian federal parliament that occurred in the period November 27-December 8, 2008. Indeed, it seems that the desire to protect the Sovereign from being put in a position parallel to that of the Canadian Governor General during that crisis may have been one of the motivations for the entire Draft Cabinet Manual project.

22. The brute fact remains, however, that the preponderance of authoritative Canadian opinion on this crisis holds that the Governor General did possess, in a case in which the Prime Minister was advising prorogation for the self-interested purpose of avoiding a non-confidence vote he was likely to lose, a reserve power to deny that prorogation.(See, for example: Franks; Slattery; Heard) Although the prorogation was granted, it is held by these observers that this was not automatic, and that the Governor General did indeed have a decision to make.

23. It is the case that it has been recognized since 1926 that "the Governor-General of a Dominion is the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the Dominion as is held by His Majesty the King in Great Britain". (UK, Imperial, p. 4) As well, the Letters Patent of 1947 relating to the office of Governor General in Canada state in part: "And We do further authorize and empower Our Governor General to exercise all powers lawfully belonging to Us in respect of summoning, proroguing or dissolving the Parliament of Canada." (UK, 1947, section VI)

24. Thus, there must be at least an implication that, if the Canadian Governor General has a reserve power to refuse, in exceptional circumstances, advice to prorogue, the Sovereign has a parallel power. As it stands, the Draft Cabinet Manual denies such a power.

25. It may be argued: that the preponderance of authoritative Canadian opinion is mistaken; or, that conventions regarding this area have diverged, such that what applies in Canada no longer has relevance to the UK. It is not the purpose of this submission to attempt to resolve such questions. Rather, the purpose is to draw attention to the question, so "that the draft covers the issues which need to be covered".

26. Again, the desire to shield the Sovereign from involvement in political affairs is entirely understandable. The issue raised by this submission is whether the Draft Cabinet Manual has adopted the best strategy to achieve that goal.

Recommendations

27. The authors of the Draft Cabinet Manual should undertake further consultation to determine the degree to which there is "doubt or disagreement" regarding the Sovereign's reserve powers in relation to the prorogation of Parliament in exceptional circumstances.

28. If it is decided that a reserve power to refuse prorogation in exceptional circumstances exists, the Draft Cabinet Manual should be amended accordingly. The section noting this power should include a statement similar to that in Paragraph 59, i.e., 'There is a duty on the Prime Minister to act in a way that prevents the Sovereign being drawn into political controversy by having to exercise this reserve power.'

29. If it is decided that such a reserve power does not exist, paragraph 108 of the Draft Cabinet Manual should be amended. Here, not only are "constitutional" and "personal" prerogatives lumped together, but the powers of prorogation and dissolution fall together in one category of the list. One might surmise that this categorization has simply been carried over from a previous Ministry of Justice report. (UK, Ministry, p. 33) However, it is clear, as noted in paragraph 58 of the Draft Cabinet Manual, that the dissolution of Parliament is, in certain circumstances, subject to the exercise of a reserve power. Thus, if the determination is that prorogation is not subject to such a power, the pairing of the two here would serve to detract from the clarity of the statement at paragraph 65.

Conclusion

30. The clarification of the conventions relating to the exercise of the prerogative powers of the Crown is a worthy goal. Protection of the Sovereign from involvement in political controversy is crucial. The position of this submission is that these goals are best served not by seeking to deny that certain reserve powers exist, but rather by acknowledging their existence while stipulating that the onus is on the political actors of the day to comport themselves such that the powers do not have to be exercised. That way, in the unlikely event that the powers do have to be exercised, it will be clear to the populace: that their exercise is legitimate; that the fact that the Sovereign is forced into their exercise represents a grave failure on the part of the political actors involved; and that, therefore, it is the political actors, rather than the Sovereign, who should bear the political consequences.

Bibliography

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