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.