CAN THE QUEEN DISMISS DAVID CAMERON?
The essay will attempt to explain the extent to which, in the present day, the Sovereign enjoys a constitutional right to dismiss Ministers of the Crown (in particular the Prime Minister), and evaluate whether this right is available in practice (and if not, explain why not).
This question requires a consideration of the extent to which the Sovereign today enjoys a constitutional right to dismiss Ministers and in particular the Prime Minister and an evaluation of whether this right is available in practice.
Bagehot writing The English Constitution in 1867 was regarded as an astute observer and commentator In his words, "a parliamentary system educates the public, while a presidential system corrupts it." and the quotation above is no doubt as true today as it was then. While a Minister (be he/she Prime or not) has the majority of Parliament behind him/her then it is not conceivable that the Sovereign would or would attempt to destroy (ie dismiss) that Minister. To this extent Bagehot is correct.
However, Bagehot puts to us a situation where the Minister (Prime or not) has the support of a Parliamentary majority. One must consider a situation where this is not the case – a hung Parliament for example. In that event would ‘the English people’ – or indeed others – be so surprised if the Sovereign dismissed a Minister (Prime or not) ?
Any right or power that the Sovereign enjoys in this regard would derive from the Royal Prerogative or constitutional convention (or a combination of both) and these must be examined in the context of the issues to be considered. It may in fact be more accurate to speak of a power rather than ‘a right’ for a ‘right’ may pre – suppose an inability of the Executive or the Courts to oppose the exercise of such ‘right’ when the reality may be that the Sovereign has a power only which is subject to convention and it is only where matters hang in the balance that the convention denying the Sovereign the exercise of such power may be relaxed as there is no viable alternative but to allow the Sovereign to exercise residual powers.
The Royal Prerogative has been defined ‘as comprising those attributes belonging to the Crown which are derived from the common law, not statute, and which still survive’ and ‘are recognised, rather than created, by the common law, for their source is in custom’ and ‘are a residue, a remnant of what was possessed by medieval kings and queens’
There is, as Munro points out an issue in defining exactly what ‘prerogative’ means with Blackstone declaring that the term should be restricted to rights and capacities which the king alone enjoys as against Dicey who gave the term a wider meaning to comprise every act which the executive could do without the authority of statute.
However one might define the prerogative there is, as the quotation from Bagehot suggests a great difference between the constitutional theory and the use and application of the prerogative in practice. Bagehot was writing in the 19th century and yet articulates the gulf between constitutional theory and practice. Today the gulf between theory and practice is likely to be seen as wider given our current notions of constitutional democracy but even in Bagehot’s time it was expected that the majority party would form the government and the leader of the majority party would be Prime Minister by virtue of being leader of the majority party who wished and expected for their leader to be Prime Minister.
Munro emphasises the difference between theory and practice where he says that ‘what Bagehot and Dicey appreciated….was that most of the prerogatives of government which in the seventeenth century had been in the hands of the monarch, were being exercised by or in accordance with the advice of the leaders of the majority in Parliament’
The decline in the ability of the monarch to use prerogative powers was a result of the increasing strength of the party system and accountability to Parliament.
The fact is that most prerogative powers are exercised in the name of the Crown rather than by the Sovereign personally although there are still some prerogatives where the Sovereign’s discretion is used but not in respect of anything that is of vital importance.
The Sovereign does, however, retain certain so called residuary powers which are exercisable in circumstances where the usual convention of following ministerial advice may not be followed and the most important of these is the appointment of Prime Minister.
The Case of Proclamations 1611 distinguished between ordinary and absolute prerogatives the former being where the Sovereign had no choice and now acts on the advice of her ministers and the latter where she has some discretion.Today the Sovereign has discretion over some matters notably the awarding of certain honours and it is suggested that in certain exceptional cases she may be able to exercise some discretion over the appointment of the Prime Minister and other Ministers.
The constitutional convention is that the Sovereign will exercise her formal legal powers in accordance with ministerial advice except in exceptional circumstances and one of those exceptional circumstances is the appointment and dismissal of Ministers including the Prime Minister.
The Queen invariably acts on the advice of her Ministers – this is the convention.
In The English Constitution (1867) Bagehot declared that the Queen has ‘the right to be consulted, the right to encourage and the right to warn.’ This is a constitutional convention.
By convention the Prime Minister chooses the government although the Sovereign is quite entitled to indicate a preference as did George VI for the Foreign Secretary to be Ernest Bevin. Whilst the Queen would not choose the Prime Minister where there was a majority party the situation becomes less distinct if there is no majority ie in the case of a hung Parliament.
Historically there is some (perhaps weak) precedent indicating how things might go in similar situations. During the 1st World War (1914-1918) George V was host to a conference of party leaders when Herbert Asquith who was leader of the Liberal Party and a coalition government resigned because the War was not going too well. This obviously led a vacuum which had to be filled. The leader of the Conservative Party was Bonar Law but although the King sent for him he could not form a government. The King was in a position where he might have had to make a personal choice for Prime Minister but following the conference Lloyd George became Prime Minister without the King having to make a personal decision.
Again in 1963 Sir Alec Douglas Home was elected as leader of the Conservative Party (and hence Prime Minister).The former Prime Minister had resigned and again there was a vacuum since the Party then had no system for electing a leader. The Sovereign would consult with prominent Party members and a leader would ‘emerge’ and although the Sovereign may have expressed personal opinions on various candidates it would be highly unlikely if the Sovereign did anything more than this.
Likewise in 1931 the Labour Prime Minister Macdonald wanted to reduce unemployment benefit to cut the amount of public expenditure but this was opposed by his own Party (although not by opposition Parties).MacDonald offered to resign but this was not accepted by George V who consulted with other Party leaders who suggested that MacDonald should become leader of a national government. He was subsequently successful at a General Election after taking this advice and although the Sovereign was criticised for becoming too involved it was in circumstances where without the Sovereign’s personal involvement the situation may not have moved on or moved on in a less than satisfactory way.
The Sovereign William IV actually dismissed the Prime Minister Lord Melbourne but that is unlikely to happen today.
Having said this the extent to which the Courts would, for example,be able or even be prepared to review decisions made by the Sovereign under her residual prerogative powers is questionable.
In the GCHQ case  AC 374 the House of Lords acknowledged that the Royal Prerogative could be controlled by judicial review but that some governmental prerogative powers were outside of the scope of judicial review and it would seem that the Courts are wary of interfering with politically charged situations where the prerogative is used. Lord Roskill declared that the use of the prerogative in connection with defence, the granting of honours, the exercise of mercy the dissolution of Parliament and the appointment of Ministers lay outside the Court’s remit and were a matter for government.
Constitutional convention makes Ministers responsible to Parliament and it is to Parliament they are expected to answer and not to the Sovereign.They are accountable to Parliament and thereby to the electorate. A Minister who loses the confidence of the House would no doubt resign or be told to resign by the Prime Minister before the House took a vote of confidence.
A constitutional convention is according to Marshall and Moodie ‘considered to be binding by and upon those who operate the constitution by which are not enforced by the law courts’ (‘Some problems of the Constitution’ ).Conventions are nebulous and might be seen as guidelines to conduct ie what should happen in particular situations. Where those situations are repetitive then it is easier to develop and recognise a convention, however, at the margins and with regard to infrequently encountered situations recognising a convention and what it is is less easy.
Conventions regulate the ‘constitutional inter-relationship between legal principle and political practice’ (Loveland 2003).
As Hilaire Barnett states ( Constitutional & Administrative Law 4th edn Cavendish Publishing 2002) in circumstances where a Prime Minister retires the government still has the mandate of the people through the electorate and thereby is able to select the Prime Minister and it is therefore “unrealistic to speak of the Crown having any choice in the matter” (page 156) and “the Queen has no practical ‘say’ in the matter” (page 156)
As Barnett says “It was not always thus” (page 156) and she goes on to give the example of Sir Anthony Eden’s resignation in 1957 with no obvious successor in place and with no election process available. The Queen thus had a choice in the matter and after consultation with elder statesmen she acted on Ministerial advice and Harold Macmillam was appointed Prime Minister.
Interestingly according to the former Prime Minister Harold Wilson it is the Queen (the Sovereign) “who decides whom to send for and invite to form a government” (The Governance of Britain Wilson 1976 at page 22 cited by Barnett at page 157)
In conclusion it might be said that whatever rights the Sovereign may have in theory they are not matched in practice but the delicate balance between the theoretical Sovereign prerogative rights of a residual nature and the actualitie are likely to be maintained so that there will be no volcanic eruption from Primrose Hill.
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