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That Supreme Court Decision

September 30, 2019

Letter to Dorset Echo

Sir Oliver Letwin (‘Effect on Constitution is Profound’, Sat 28th Sept) was right to welcome the Supreme Court’s decision to nullify the recent prorogation, and to note that in future governments that make unreasonable use of prerogative powers (i.e. those exercised in the name of the Queen even where she is not consulted), may be subject to legal challenge. However I do not feel that appeal to the courts is always the right way of addressing such issues.

Taking the matter of prorogations, although Boris Johnson may not carry out his threat to seek another unreasonable prorogation, other Prime Ministers might. It seems obvious to me that no prorogation that does not have the consent of Parliament is justified. A very simple piece of legislation could be enacted that would require a Prime Minister, before asking the Queen for a prorogation, to check that Parliament is ok with it. As things stand she has (by convention) to accept the Prime Minister’s advice even if she is unhappy with doing so.

The one important decision the Queen has to make without the advice of the Prime Minister is to choose his or her successor. She needs to choose the person most likely to command a majority in the House of Commons. Up to now the choice has been obvious. Even in 2010 when there was a hung Parliament she had only to wait to see which way the Lib Dems would jump.

The situation presented by the resignation of Mrs May is however I think unique. Mrs May’s government was a minority one propped up by the DUP, and by the time she resigned even DUP support was barely enough. Furthermore there are deep divisions in both major parties. The choice of Boris Johnson seems to have been dictated by the fact that he was elected by the Conservative Party as its leader from a field of mainly Eurosceptic candidates. The vast majority of the people had no say. That said, the Queen would have had difficulty in making another choice. In 2011 the cabinet manual was published. This does not seek to establish new rules, but rather tries to interpret the often unwitten rules we have. It does not have the authority of Parliament. In regard to the choice of Prime Minister it sets out a number of rules, but in my opinion they do not cover the precise set of circumstances the Queen faced.

That raises the question, “Is not the House of Commons itself best placed to judge who could command their support?” This is the situation in the Irish republic where the constitution says, “The President shall, on the nomination of Dáil Éireann, appoint the Taoiseach, that is, the head of the Government or Prime Minister.” [The President has no discretion in this matter]. were that rule applied here, MPs might have chosen Boris Johnson anyway, or they might have wanted to choose someone less divisive – Ken Clarke for example.

The Queen could in theory, I suppose, have asked the speaker to ascertain the view of the House, but that could rightly or wrongly have been interpreted as expressing her view of the leadership candidates. I would suggest that legislation is the appropriate solution.

note that the version sent to the Dorset Echo had to be shortened somewhat. The above is the unabridged version.

From → Democracy

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