Moore on the House and prerogatives

A quick response to a proposition that’s been floated by a few folks regarding the UK Parliament’s vote against military action in Syria, namely that the House ultimately controls the Crown, therefore what happened was merely routine.

Christopher Moore laid out his case here, and summarized it as follows:

“Crown prerogative” is not a blank cheque; the crown has as much prerogative as the house is willing to allow to it.

Well, that depends on what he means. If he means it literally, then this is a misrepresentation of the nature of prerogative power.

Prerogative power is legal authority. It has the same standing as statute in terms of granting the executive the right to act and decide things. In that sense, prerogative provides the executive with as much discretion as a statute can. And, when the prerogative is left untouched, it does allow the executive to act as it wants, contained only by the rule of law and the constitution. Put simply, the essence of prerogative power is precisely that it allows the executive to act as it sees fit in particular areas.

I think Moore might mean that Parliament can limit a prerogative power. That’s true, but it requires an actual statute to do so. That implies two things. First, a motion in the House does not impose any formal limitations on prerogative power. And second, both the House and Senate would need to enact legislation to actually decide how “much prerogative” the executive has in legal terms.

So, strictly speaking, it’s not correct that the House determines the scope of prerogative through motions.

Reading Moore’s post, I suspect he knows this and was simply adding a bit of flair.

Yet I also need to disagree with his other point: that Cameron was merely consulting the House to get its opinion.

That’s true in Canada, where votes on military deployments in the House of Commons are merely advisory and only held when the executive wants. But the obligation to consult the House is now considered a constitutional convention in the UK. It’s fair to say that Cameron felt bound to consult the House as a result of this convention. More importantly, though, was what Cameron said after the vote. When asked by the Labour leader for an assurance that he would not exercise the prerogative power in the aftermath of the vote, Cameron stated plainly that he would not. He considered the vote to have effectively taken the option of exercising the prerogative off the table.

So, was that a mere consultation or decision to grant the House the right to determine whether he could exercise this prerogative authority? If it was the latter, then my concerns remain: the PM allowed the House to check a core executive power and responsibility without withdrawing confidence. That’s not what Parliament is ‘there for’, as Charles Moore rightly pointed out in the Telegraph, and as the nature of responsible government indicates. The House is there to hold governments to account for the manner in which they exercise executive power (be it prerogative, statutory, personal, or constitutional). If the House is not satisfied with how a government governs, then it should find another government, rather than attempt to indirectly control policy through motions with no commensurate degree of responsibility or accountability.

Parliament has been a court, a legislative power, and a forum for deliberation. It has never been an executive body. It’s worth asking if it’s wise to allow it to become one.

Advertisements

5 Comments

  1. Philippe, I read your analysis with interest and admiration. But I stand by my point: “The crown has as much power as the House will allow it” because power is as much political as statutory.
    You remind us that prerogative power is legal authority — and it is. But to go on to say an actual statute is required to limit a prerogative power? Surely the recent British event shows that is not so.
    The British House passed no statute. Cameron’s authority to attack Syria is undiminished in law. But he is not using the prerogative that he undoubtedly still has, in law.
    The House (government members standing with opposition ones to make the majority) merely sent the message, use your prerogative power in this way, and you will disappoint/annoy/anger/betray this House. Despite that, Cameron could still exercise the war power and annoy the House. But there would be a political price to pay, and he judges it unwise to pay it. That is what is limiting his use of the prerogative power, and that is what usually does it — at least in Parliaments that actively hold governments to account: not statutory amendments but a political negotiation between executive and legislature.
    I think this is difficult for Canadians to think through, because in Canada backbenchers always defer to leaders, and we tend to take that as the parliamentary norm. Leaders with majorities here have not had to worry about annoying or disappointing the House for about a century, so there is little risk to their use of prerogative powers. But in most parliaments that is not the case. Even in majority situations, governments in most parliamentary countries do need to worry about holding together majority support for their policies and their legislation. So they try not to annoy the House. And that gives the House the ability to limit uses of crown prerogative — all the leverage it needs, usually, and perfectly in keeping with the tenets of responsible government. Except in Canada.

    1. Hi Christopher,

      Thanks for your reply and keeping the conversation going.

      I think we need to distinguish between three categories of limitation.

      The first is legal limitation through statute, whereby the prerogative is formally limited by an Act of Parliament. That reduces or contains how the executive can actually exercise the power.

      The second is limitation through convention. Convention does not limit the legal authority of the prerogative in question, but it imposes politically binding rules around how it can be exercises.

      The third is what we might call practical limitation, where the executive chooses not to exercise the prerogative because it worries about the political consequences.

      Whereas the first two represent a tangible limitation on prerogative power, the third is an ephemeral limitation, one that can surround any type of executive decision or action, prerogative-based or otherwise. In that sense, it is not really a question of limiting prerogative power so much as forcing a ministry or prime minister to consider how a decision might affect their political fortunes.

      While I agree with you that the House can and should try to limit a ministry’s ambition via the third category, I don’t think this should be done in a way that leads to the second category. Put differently, my view is that the House should be able to express its views on executive decisions through take note debates rather than votes. Prime ministers should be aware of the House’s mood and act accordingly. But if the House is given the power to veto exercises of an executive power without withdrawing confidence in the government, and if this becomes cemented in a binding convention, then we are headed toward a form of responsible government that allows the House to intrude on executive decisions without having the bear any of the government’s responsibilities or accountabilities. While that may resemble what we see in other types of parliaments, it is a move away from how responsible government has typically operated since the 19th century. And it undermines a key strength of the Westminster system: that the House allows the government to govern until such time as it has no more confidence in that government. I’m not sure we want to move to a system where the House has no confidence in a government’s ability to conduct foreign and defence affairs, yet MPs offer no other alternative ministry who can take responsibility for matters of state.

      Best,

      Phil

  2. Phil, we should probably back off and encourage others to comment. But until they do, I cannot resist one reply.
    Of your three limitations, I think we agree 1 is not on the agenda here — no statutory limits have been put on crown prerogative by the British House, or even proposed. And I think we largely agree on number 3, the informal political process, though you call it “ephemeral,” whereas I see it as the normal, routine, and essential way that abuse of crown prerogative is prevented.
    Which brings us to number 2, the one you worry about: that the British House’s expression of dislike for an attack on Syria, now, in these specific circumstances, might harden into a permanent convention that prevents the executive from giving direction to the military forces..
    That strikes me as highly unlikely. Say Assad began using chemical weapons daily and killing tens of thousands. I suspect the Britain cabinet would swiftly authorize military action despite the previous vote, and the House would not object.
    But and this is the crucial point about your #2: what is a “convention”? It is not a statute and not legally enforceable. You call it “politically binding.” But the only force that can bind the executive to follow a convention is the will of the House. Which suggests Number 2 is just an extension of number 3 — parliamentary control on abuse of executive power.
    Just as crown prerogative can be and is restrained by what the House will tolerate, conventions ultimately must depend, not on the good will and self-restraint of prime ministers, but on the will of the House to enforce them. A convention is merely any longterm rule of parliamentary procedure that the executive will accept and the house will enforce. The sheer impracticality of expecting the house to micro-manage every military deployment ensures that one is unlikely to achieve convention status — no executive would accept it permanently, and in the long run no house would enforce it..
    In Canada, where the House will accept anything, our experts try hard to reify conventions into hard-and-fast, quasi-black-letter rules, somehow magically binding. But ultimately an executive can ignore or redefine any convention unless the House is willing to impose a price for such actions. Since Canadian parliamentarians have abandoned that role for many decades, I’d say the danger you see of power-mad parliaments trying to create new conventions is less imminent than the danger of executives running roughshod over conventions — certainly in Canada, but probably in Britain too, where the presidential-style prime minister is hardly unknown.

    1. Hi Christopher,

      I think it’s more complicated that you suggest.

      Statutory limits have actually been sought on a number of occasions, both in the UK and in Canada. We saw PMBs to that effect in the late 1990s and the UK has been seriously considering it. In fact, they’ve made the Commons’ approval of treaties a statutory requirement. The reason they’ve shied away from making the consultation of the Commons a statutory requirements is a fear that this will lead to judicial review of military deployment decisions. Indeed, this is the main reason that the UK has kept the consultation of the Commons a convention. It is considered binding on the executive, but in keeping the prerogative formally in place, it discourages judicial review of decisions made under that authority.

      Now, I tend to agree with you that conventions are hard to impose in Canada. But I wouldn’t say that’s always the case and it certainly isn’t in the UK. A good example of a Canadian government agreeing to bind itself by convention was the Patriation Reference. Technically, the federal government could have acted alone, legally speaking, but it accepted the SCC’s finding that a convention of provincial involvement applied. The courts could also find that consulting the HoC is required for military deployments if this eventually becomes a convention in Canada. If this happened, it wouldn’t prevent the executive from exercising the prerogative alone, but it would likely lead to a significant confrontation: having the courts declare that the executive has acted unconstitutionally is no small thing. Indeed, one of the reasons I oppose HoC votes for deployments is my concern that this would happen, which would leave the Canadian Forces in a bind: if the courts declare that a deployment order is unconstitutional, should the Chief of the Defence Staff not obey? Would the House be obligated to withdraw its confidence in a government that acted in such an unconstitutional manner? Would it be considered an exceptional circumstance that would require the involvement of the Governor General? These are important questions that we shouldn’t brush off. That’s in part why I don’t think this is simply a matter of power-hungry MPs. It’s a matter of being clear about where authority lies and what mechanisms are actually used to legitimately contain executive authority.

      This are lesser concerns in the UK. First, they’re far better at articulating when a practice has become a binding constitutional convention. They have reports from both the Commons and Lords that state it explicitly. As well, I wouldn’t be surprised if this convention eventually finds its way into the UK’s Cabinet manual or some other codification of the rules surrounding how prerogatives are exercised.

      So, yes, conventions grow out of practices. But I wouldn’t conflate the two. Nor would I reduce the issue to one of whether MPs are sufficiently aggressive in checking governments. We need to ask whether we want MPs to have a degree of non-binding political influence over deployments decisions (I’m fine with that), whether the Commons should politically bind the executive through a convention that can be recognized by the courts but which preserves the ability of prerogative to ward off judicial review of decision made under Crown authority, or if we want Commons consultation to be placed on a statutory footing, making it legally binding and allowing for the possibility of judicial review of the decision to deploy.

      Phil

  3. what’s missing from ATpmlagasse’s arguments is a consideration of legislative versus executive ACTIONS (rather than branches)

    another point of access into that regards binding/not (classic counters as to plebiscites, & Napoleon — trappings)

    let’s start with the following clarity — in the somewhat clearer American-adopted, separation-of-power model….

    (though there ARE other contours to separation-of-powers — different approaches & issues) it’s commonly misthought

    in American model that it’s 3 distinct branches as to EXERCISE of powers. RATHER, think of it NOT as….

    executive, judicial (historically part of executive branch, outside US), & legislative BRANCHES, but, as 2..(in US)

    Congress, president, & courts. So, EACH branch can exercise executive, legislative, or judicial POWERS.

    What’s meant by separation-of-powers, functionally, is, if in CONFLICT (branch to branch to branch) on ISSUE…

    1 beats 2 (as to branch) dependent on ISSUE — so, in an executive power (& conflict) president prevails….

    in a legislative matter, Congress prevails, in judicial, Courts prevail. (I’d also add it’s commonly misthought

    that ONLY SCOTUS can interpret the Constitution — RATHER, only it can interpret for Article III courts, so…..

    If you’re a different branch, with a different view, on a legal matter, don’t count on any court process helping.

    But, I dunno, maybe you’re the president with a GITMO NON-Article III court (tribunals), in-which case…Court waits

    UNTIL some overlap of jurisdiction occurs. Now then, as to Canada — CLASSICALLY there were 3 branches….

    Crowns, Lords, & Commons, & EACH branch could exercise executive, (judicial – part of executive) / legislative POWER

    What happens in such a CHECKS-&-BALANCES (rather than separation-of-powers) system? It’s NOT 1 beats 2…

    with distinct areas, but, 2 beats 1. Crown & Lords aligned against Commons, say….(classically)

    With those background concepts, the question is as to POWERS. It’s NOT that the Opposition CAN’T exercise…

    executive power, but, that it’s not the government (different ‘branch’ so to speak), but, that’s not the question…

    the question is as to government, acting AS executive, with executive powers, &, what happens, if Opposition…

    (& Opposition could be joined here by non-Cabinet government MPs AS MPs) acts LEGISLATIVELY to over-rule?

    So, as per INERTIA, government does what it does (as executive) – & then parliamentarians pass bill to cut funds?

    Legislative power then trumps executive power (as it generally should) — note, it’s NOT about branches, but VOTES

    final-thoughts, as to ATpmlagasse, then. I guess where I’d say I PROFOUNDLY disagree is that I don’t see matters….

    as that one group has nominal (or statutory) responsibility, while another would play a ‘consciousness raising’ role

    I see matters as that, practically, the executive may try to do what it can, & others must attempt to have penalties

    in-place if contravening. Somewhat there’s a grift to defer-to-next-election, &, we see it, somewhat EVEN in US,

    where a political decision in final Bush years was NOT impeach, but, store-up political capital for Democrats…

    Even so, though, the POWER (not so long ago exercised) of Congress to impeach is THERE. It’s ALSO in parliament…..

    SPECIFIC legislation BANNING someone from a ministerial post would BIND – Ariel Sharon had as-much, long ago….

    A counter COULD ask as to laws don’t target people, as cases, but, the counter would be, anyone found negligent….

    by government commission as to Sabra & Shatilla can’t be defense-minister (Sharon, in other words.)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s