The House of Lords is a non-elected body (at least in the sense that its members are not by the voting public) and therefore could in theory be largely independent of political considerations. In a state in which the Prime Minister controls the House of Commons, which, as leader of the majority party, he does, this gives the House of Lords the potential to be a significant check on his power. However, the House of Lords has been subordinate to the House of Commons since early last century, and no longer retains its power of veto over proposed legislation. The most that this arm of the British legislature can hope to achieve when presented with legislation to which it objects is limited delay; when current reform is completed, it will exist to revise and deliberate on material put before it by the House of Commons, retaining the power of delay, but bereft of the capacity to have any significant impact on policy and legislation8.
The British executive is, essentially, the Cabinet and such institutions as the civil service, the social services, the armed forces, the police force, etc: bodies vested with the responsibility for the management of the state. The institutions fall ultimately under the control of Cabinet Ministers, who, it can be held, are controlled by the Prime Minister.
Although the Prime Ministerial role may once have been open to accurate description as primus inter pares, it has long been the case that Cabinet Ministers are subordinate to the Prime Minister. According to the doctrine of collective responsibility, any Cabinet Minister who does not publicly support government policy is expected to tender his or her resignation: it was on the basis of this constitutional convention that a leading member of the Labour Cabinet resigned in 2003. Robin Cook declined to support the Prime Minister’s decision to go to war against Iraq, and, further, chose to speak out against it9. Irrespective of any popular support that this decision may have garnered for him personally, choosing to resign from the Cabinet and to protest visibly against government policy is tantamount to professional hara kiri10: it is not reasonably to be expected that the leader of the party, whom he had chosen not to follow, will decide to overlook this perfidy and return him to an elevated position in his government. The professional losses attached to resignation from the Cabinet are such that Ministers are understandably reluctant to take such a step, and so more likely than not to disguise all but the most extreme objections to the Prime Minister’s policies and decisions as far as the public eye, and even that of the body of the party, is concerned: disquiet and outright discord may be seen during Cabinet meetings, and political bartering may take place there, but by custom and practice, Cabinet Ministers will not attempt to thwart the Prime Minister’s plans for the state’s future11 - if for no other reason than that they are members of the same party, elected on the basis of the same policies. In any event, the Prime Minister holds the deciding vote in Cabinet meetings, and in extremis can override a majority.
Even the most cursory examination of the facts of governance in the UK will show that the legislature and the executive are to all intents and purposes fused, and effectively under the control of the Prime Minister: it is basic logic that explains the practical fusion of the executive and legislative organs of government. The Prime Minister is, in normal circumstances,12 the leader of the party that has won the most seats in the House of Commons, which is the body invested with the most legislative power. The Prime Minister is also the leader of the Cabinet13, which controls the executive arm of government, and of which the members are also members of the majority party in the House of Commons.
The Prime Minister does not so completely control the judiciary, an inherently non-democratic body which appropriately does not involve itself in party politics or governmental policy making14, and does not have the power to dismiss its members15. However, judges are appointed to the High and Circuit Courts - currently - by the Lord Chancellor, a member of the Cabinet; and more significantly to the Courts of Appeal and the House of Lords by the Prime Minister. Taking a long-term view, it is entirely possible for a Prime Minister to hold enormous influence over the judiciary, though this does not seem to have happened to date; and there are no legal provisions to prevent it. It is noteworthy also that the Law Lords are members of the House of Lords, a minor but - at least currently - nonetheless active part of the legislature.
Although organs of government can be brought before the same courts as private citizens, by private citizens, and are subject to the same laws as private citizens16, in terms of controlling the Prime Minister where the legislature and executive fail, the judiciary is fettered very significantly by the fact that it cannot rule in areas that have not been presented to it as the subject of litigation, and it does not have any power in its own right to enforce its judgments17: the judiciary can, in theory, be completely ignored by the executive and the legislature. This renders the Rule of Law no more significant a restraining force than any other of the constitutional conventions supposed to control the power of the Prime Minister.
One rather stronger implied check on the activities of the Prime Minister can be found in Great Britain’s membership of the European Union, and agreement to uphold the principles of the Council of Europe’s European Convention on Human Rights: however, the potential and actual functions of the European Courts in checking the activities of the British government will not be considered here.
This is not to say that the institutions of government are wholly powerless in the face of the Prime Minister’s whims: should the executive or the legislature so choose, a confidence vote can be demanded, and by the same level of convention that binds the members of the Cabinet to lend public support to government policies or resign, a Prime Minister losing such a vote is expected to stand down in his own turn18. It is not known what would happen should the Prime Minister refuse to resign in those circumstances; it could be suggested that the most probable result is a species of civil coup d’etat in which the Prime Minister would simply cease to be acknowledged, his deputy would put a request for the dissolution of Parliament to the monarch, and a general election would be called. To describe such a situation as “highly unlikely” is to understate the odds against it enormously: the conventions governing the behaviour of a Prime Minister are so ingrained as to be comparable to law in terms of their binding effect. That said, they are not actually legally enforceable, and so are arguably only as binding as the Prime Minister chooses to allow them to be.
Nonetheless the conclusion must be that the legislature is fused, to a greater or lesser extent, with both the executive (through the House of Commons) and the judiciary (through the House of Lords); and that all three are, in normal circumstances and barring extreme measures, essentially in the control of the Prime Minister and therefore cannot be argued to constitute a realistic check on his power. Without for a moment being outwith the constitutional arrangements of the UK, the Prime Minister is fundamentally unrestricted by his Cabinet colleagues, the will of Parliament, or the decisions of the judiciary.
The significance of the monarchy in the question of the Prime Minister’s power has diminished beyond all recognition in the centuries following the English Civil War. It is still necessary, by convention, that Royal Assent is granted before an item of legislation can take effect; but it is also conventional that the sovereign19 grant his or her assent to any and every piece of Parliament-approved legislation presented to him or her20. As a technical point of law, the monarch has the power to veto a decision made by the Prime minister. It is interesting to speculate on the result of a refusal to grant Royal Assent, or other intervention, but gloomy from the monarch’s perspective. There can be little doubt that such an act would result at least in the abdication of the intractable monarch, and at most in the total collapse of the monarchy as an institution. Another interesting question is that of what would happen if, following a general election which produced a clear victor, the monarch declined to invite that victor to form a government. Again, the likelihood is probably that the monarchy would either have to suffer an abdication or its disbanding should it attempt to overrule convention in such a way. But could the monarchy really act to constrain a Prime Minister if the rest of the executive, legislature and judiciary fail to do so, and it were genuinely in the best interests of Great Britain? This is uncertain ground at best; the only real way of establishing an answer to such a question is by practical experimentation, and would probably achieve the net result of piling one constitutional crisis atop another, and translating a crisis into a disaster.
The single greatest argument against describing the British Prime Minister as an elective dictator is the fact that general elections are still statutorily held at least every five years. While ever the people of the UK are at liberty to go to their polling stations and make a free choice between candidates whose political backgrounds and stand-points are genuinely different, there is no dictatorship, elective or otherwise. On this basis even if no other, it cannot be argued with any real hope of success that the British Prime Minister, at this time, is an elective dictator.
But neither can it be argued with any real hope of success that the particular constitutional arrangements in place in the UK are such that this will never be the case: under the much-vaunted doctrine of Parliamentary sovereignty, the statutory requirement that general elections be held at least every five years is not above repeal. While the British government remains bound by little more than unenforceable convention and legislation that is inescapably capable of repeal, with the executive and the legislature increasingly fused, and the judiciary lacking its own powers of enforcement, there is no guaranteed protection against just such a development.
1 “The UK”
2 Interestingly, this term though in use for some considerable time, was not formalised until the 1905-1908 premiership of Sir Henry Campbell-Bannerman, who was the first official holder of the title.
3 A comprehensive discussion of the nature of Parliamentary supremacy, or Parliamentary sovereignty, may be found in Bradley and Ewing, chapter 4. Devolution issues will not be discussed here, since the Westminster Parliament retains supremacy over the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, and it is therefore the Prime Minister’s relationship with the Westminster Parliament that is of interest.
4 There have only been 26 amendments to the United States’ constitution in over 200 years. This may not be entirely due to the stringent procedures for amendment of constitutional law, however: the original document was astonishingly short, comprising only 7 articles. The less-entrenched German constitution, after approximately 40 amendments, now has 146 articles.
5 Whether based on the “pure separation of powers” model, as employed in France (though Constitutional legislation in France is supported by uncodified conventions), or even the “partial separation of powers”, as in the United States of America.
6 For the sake of convenience, I will use only the masculine pronouns rather than “he or she” etc.
7 Further, the political reality is that an unruly party may be brought back into line by a threat of general election or of a confidence vote (indeed, the latter was employed by John Major during his time as Prime Minister): having gained power, a party is reluctant to lose it, and a visibly split party is unlikely to be re-elected.
8 Despite the implications of the loss of the power of veto in terms of the loss of a putative check on the Prime Minister’s ability to make the legislature do as he chooses, Lords reform should be seen as a move in the direction of increased democracy in government - and it should not be overlooked that the Prime Minister is already among those few who have the power to influence the composition of the House of Lords.
9 It is interesting to note, however, that quondam Cabinet Minister Clare Short, publicly voiced strong criticism of government policy while in office: her resignation did not follow for a further two months, and she remained in office during the intervening period at the request of the Prime Minister. Whether or not there is any truth in the suggestion that her resignation was ultimately at the Prime Minister’s behest (a case of jumping before being pushed) is irrelevant: the fact remains unalterably that she continued to hold Ministerial office even after speaking publicly against Government policy. This is a dangerous precedent for the doctrine of collective responsibility as it is presently understood, but may potentially lead to the reverse of the trend which led to the Prime Minister’s becoming noticeably senior to the other members of the Cabinet: if Ministers are able to speak out publicly without being required to stand down, the forum for challenging unpopular policy may strengthen and expand in such a way that the Prime Minister can be checked by his own Cabinet, without the need for “plea-bargaining” tactics, or uniting the members of minority parties against the Government.
10 It is also contrary to personal interests: at present, there is a difference of approximately £70,000 between the salary of a Cabinet Minister and a back bench MP. Selflessness is, of course, supposed to be one of the seven principles of public life, and is in fact at the head of the list as it appears in the annex to the Ministerial Code of Conduct, but human nature should not be overlooked as a motivating factor.
11 It should also be noted, when discussing the power of the executive to check the Prime Minister, that he is entitled to dismiss or request the resignation of any member of his government; in addition to which, Ministerial appointments are in his or her gift when forming or re-shuffling a Cabinet, and it is a matter of political common sense that the Prime Minister will grant influential Ministerial posts to sympathetic members of his party, rather than those individuals who form what could be termed an “internal opposition”.
12 I do not take coalition governments as being in the run of normal circumstances. Since 1900, there have been 6 coalition governments, in power around the times of the World Wars, and more than thrice that number of single-party majorities; between 1721 and 1900, there was only 1 coalition government. Prime Ministerial arrangements in such situations are not entirely the same, the whole balance of power being fundamentally less secure.
13 In 1989, having lost the support of the Cabinet, the then Prime Minister Margaret Thatcher did indeed resign. This was unquestionably a significant step in her party’s fall from power, and it can be argued that the continuing decline of the Conservative Party is exacerbated by its ongoing failure to unite behind a strong, charismatic leader.
14 As a body, this is true. However, though judges are precluded from sitting in the House of Commons, individual judges sit on Royal Commissions and commissions of inquiry - bodies which are involved in policy-making. Similarly, the Law Lords are at liberty to speak during House of Lords debates, which amounts to involvement in the legislative process. Neither is so alarming, in terms of the doctrine of the separation of powers, as the fusion of the executive and the legislature, or the universal influence of the Prime Minister.
15 Under the Supreme Court Act 1981 s11 (and earlier Act of Settlement 1701), senior judges may only be removed from office at the request of both Houses of Parliament, and this has not happened since 1830.
16 The three key premises of the concept of the Rule of Law, a traditional restraint on the power of the government and, therefore, the Prime Minister.
17 The process of Judicial Review could be seen to be quite important in that it allows the judiciary the opportunity to examine the legality of the exercise of the powers of the executive, although the judiciary is traditionally more willing to comment on the use of statutory powers than of common law, or prerogative, powers. In the cases of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 and M v Home Office [1994] 1 AC 377 the judiciary ruled on the exercise of executive powers of both kinds, but the point remains that the courts have very little ability to enforce their decisions.
18 See previous notes on Clare Short and the threat of calling a general election. If a Cabinet minister can ignore a binding constitutional convention, why not a Prime Minister? This is a rather frightening potential ramification of the precedent Ms Short established. The previous footnote on the threat of calling a general election goes to illustrate how double-edged a weapon a confidence vote can be.
19 The sovereign and the Crown should not be confused. They can be two separate entities. The sovereign is the individual incumbent of the throne; the Crown is a legal entity holding considerable powers, sometimes embodied in the monarch, sometimes in a Minister, the government as a whole, the judiciary, or another body. Originally, all of the powers of the Crown belonged to the sovereign, but most have been transferred by statute into the direct control of other individuals or institutions. A full discussion concerning the prerogative powers - those by which executive decisions are made under common rather than statute law - can be found in S de Smith and R Brazier Constitutional and Administrative Law.
20 This convention has been unbroken since Queen Anne’s reign (1702-1714), though King George V hesitated over the Irish Home Rule Bill in 1914.
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