27

A couple of days ago, the UK Supreme Court ruled that Boris Johnson's advice to the Queen, which led to the prorogation of Parliament for 5 weeks ahead of the October 31st Brexit date, was unlawful. Therefore, the prorogation has been cancelled and Parliament has been recalled.

However, my understanding (which may be incorrect) is that the act of proroguing Parliament is a royal prerogative power of the monarch. Although, they are supposed to take guidance on the matter from their Government.

So, does that mean, at least in theory, that the Queen could overrule the Supreme Court's decision to cancel the prorogation, by citing her royal prerogative. Essentially: "Yes, the advice given to me may have been unlawful, but I still want Parliament prorogued anyway."

  • 14
    I suspect an answer will come down to "not if she wants to keep her crown". An interesting factoid: another law that she gave Assent to was declared without (by Bercow) because it was on the same document(s) that the Queen used to pass the prorogation bbc.com/news/av/uk-politics-49827305/…: – Fizz Sep 25 '19 at 18:02
  • 20
    @Fizz: That is the answer to every question on this Stack beginning with "Could/can the Queen...?" – Kevin Sep 25 '19 at 20:02
  • 5
    @Fizz : it depends on public support. For example, if the government started to behave more and more abusively and undemocratically, and the Queen used her powers against it and popular support would be on her side, then yes, she could do it without losing her crown. – vsz Sep 26 '19 at 6:41
  • 3
    @AaronF the statement "the UK doesn't have a constitution" is explicitly directly contradicted in the supreme court's decision. – phoog Sep 26 '19 at 21:29
  • 7
    @AaronF this is entirely incorrect; the UK absolutely does have a constitution. The mistake arises in people's assumption that a constitution is necessarily a single document, as in the American case. There is nothing that makes that so; in the UK's case the constitution is an agglomeration of individual pieces of legislation, prerogative power, court rulings and convention. See en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom. – Dan Scally Sep 27 '19 at 8:26
48

No.

I suggest the best source for this is probably the ruling of the Supreme Court itself. I'd encourage you to read it in full - it's not long and surprisingly readable.

The legal argument the Court made starts by establishing that courts have the right to limit the use of the Royal Prerogative (for example, see paragraph 32). It further establishes that such limits also apply to prorogation (see, for example, paragraphs 41-44). It then moves on to discuss where exactly the limit on the power of prorogation is, finding in Paragraph 50 that:

a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.

The Queen is as bound by this as the Prime Minister.

(In case of any doubt, note that I am not a lawyer. I probably don't need to say that, but I feel better saying it just in case.)

41

In the UK constitutional system, the Queen is not above the judiciary—she is the judiciary. As Wikipedia notes:

The sovereign is deemed the "fount of justice"; although the sovereign does not personally rule in judicial cases, judicial functions are performed in his or her name. For instance, prosecutions are brought on the monarch's behalf, and courts derive their authority from the Crown.

Thus, according to the constitutional principle she exercised judgement, it was ultimately her decision (a decision in her name). It doesn’t make sense for her to redecide without any new evidence being presented.

  • 18
    Ok. So, in a sense, the Supreme Court's decision was on her behalf. I.e. it was equivalent to her looking at the 'rule book' more closely and coming to the conclusion that proroguing Parliament based on the Prime Minister's advice was the wrong thing to do, hence she changed her mind? – Time4Tea Sep 25 '19 at 20:48
  • 35
    Damn, British political fiction is really funny sometimes. – Neith Sep 25 '19 at 21:22
  • 8
    Not quite. As James K points out below, our girl Liz is not the same as The Queen. The courts derive their authority from the Crown, not from the person of the monarch. – mikeagg Sep 26 '19 at 14:51
  • @mikeagg That’s not wrong, but both the court authority and the Royal Prerogative derive from the Crown (not the old woman who likes corgies). So distinguishing between the two is important but not necessary in this context. – Jan Sep 30 '19 at 13:19
20

When you start to consider the way the UK constitution works you need to distinguish clearly "The Queen" (a 93 year old woman who likes horses and Corgi dogs) from "The Queen" (Dei Gratia Monarch of the UK, embodiment of the power of the State). As the spelling is the same, it is easy to become confused, but The Queen is not the same as The Queen.

The Queen (the woman who likes horses) doesn't wield any actual political power. She does get to have meetings with the Prime Minister, and will offer her advice and wisdom. She certainly has influence, but she can't just decide to prorogue Parliament and so on.

The Queen (the living embodiment of the State) can prorogue Parliament, but this power is exercised purely on the recommendation of the legal advice of her ministers. There is a fiction in the UK constitution that the Queen makes certain instructions, such as proroguing Parliament. This is a legal fiction, as The Queen (Monarch dei gratia) can only ever act on advice.

So the Queen can't in theory say "Actually I want to prorogue Parliament". It is not within her personal remit do so. It would be "interesting" if the Queen did decide to take political decisions without ministerial advice. But as with any unconstitutional action, the constitutional effect would be unpredictable. She could well be told to abdicate, or have such reserve powers removed from her.

  • 13
    So one is the monarch of England and the other is a rock band? Glad we cleared that up ;) – Machavity Sep 25 '19 at 18:16
  • 17
    Please provide some quotes/references for your claim that Elizabeth II does not actually have the personal remit to use her powers as the living embodiment of the state. – curiousdannii Sep 26 '19 at 4:51
  • 9
    Given that the Queen is also the commander in chief of the UK armed forces, this could lead to an interesting situation in which Parliament orders the Queen to step down and the Queen orders the Army to arrest the leaders of Parliament. en.wikipedia.org/wiki/English_Civil_War – Paul Johnson Sep 26 '19 at 8:00
  • 11
    I think to avoid confusion it would be easier to use two different terms: The Queen (woman) and The Crown (the sovereign and the state). Truth in Television - or at least very close to truth. – Denis Sep 26 '19 at 10:55
  • 4
    Perhaps it would be accurate to say that as the monarch of the state, The Queen could, technically, do anything she wanted. But as she is in fact just a 93 year old woman who likes horses and corgis, and her predecessors agreed to certain concessions and limitations under the implied threat of losing their heads in a revolt, therefore she would be unlikely to fair well if she were to attempt to violate those terms. – Tal Sep 26 '19 at 17:35
6

Official briefing on the Prerogative.

Three fundamental principles of the prerogative are:

• The supremacy of statute law. Where there is a conflict between the prerogative and statute, statute prevails. Statute law cannot be altered by use of the prerogative;

• Use of the prerogative remains subject to the common law duties of fairness and reason. It is therefore possible to challenge use of the prerogative by judicial review in most cases;

That's the important one in this case - because in Cherry QC MP & Others the decision was deemed subject to judicial review. So, even if the Queen tried to make a personal intervention, it would most likely be deemed "void and of no effect" just as the most recent one was.

• While the prerogative can be abolished or abrogated by statute, it can never be broadened. However, Parliament could create powers by statute that are similar to prerogative powers in their nature

  • 2
    The last bullet point is confusing to me. If the prerogative can be removed/narrowed by statute, then under the principle of parliamentary sovereignty, surely it can be broadened by simply repealing the statute that narrowed it in the first place (parliament cannot bind its future self)? Or do you mean to say that it cannot be broadened beyond its scope prior to any statutory limitations being imposed? – JBentley Sep 26 '19 at 12:08
  • 1
    Well, that's not my writing, it's a direct quote from the document. But I think it's a sort of originality doctrine; repealing a statute wouldn't restore the powers but would effectively be creating new ones. – pjc50 Sep 26 '19 at 12:17
  • 2
    I recommend reading the full judgement of the Supreme Court. It's only 24 pages, and very clearly written. – Martin Bonner supports Monica Sep 26 '19 at 15:57
4

The Queen could dismiss PM Boris and order an election. It happened in Australia! The Queen (through her representative the governor-general) in 1975 dismissed the then Labour government because they were bankrupting the country.

  • 2
    Welcome to Politics.SE. We expect more developed answers (with references whenever possible). – Alexei Sep 27 '19 at 5:02
  • 1
    Did the Queen do that through her governor-general, or did he do that using the authority invested in him? Literally: did they have a conversation about it in which she said he should do that? – Steve Jessop Sep 27 '19 at 14:42
  • 1
    @SteveJessop The Governor General did confer with the monarch on that one, although the extent to which she advised him, or he merely consulted her beforehand is unknown I believe. – s3raph86 Sep 28 '19 at 7:49

Not the answer you're looking for? Browse other questions tagged .