CHAPTER TWELVE - AUSTRALIA’S CONSTITUTIONAL CROWN

CHAPTER TWELVE -
AUSTRALIA’S CONSTITUTIONAL CROWN
THE ROYAL PREROGATIVE
(Written in February 2006)

A recent announcement by the Leader of the British Conservative Party, the Rt. Hon. David Cameron MP⁷⁶⁵, calling for a review of Tory policies on the Royal Prerogative Powers, has raised fears among those who are concerned that the Queen’s authority will be diminished. However, what most people are not aware of is that Her Majesty even now has little say in the exercise of the Prerogative, even though it is carried out in her name.

The Royal Prerogative was originally the King’s authority exercised by the King, and while this was usually carried out through ministers and agents, the final say always rested with the King. As the Westminster System evolved and authority of the parliament increased, particularly following the Declaration⁵⁰⁴, and later Bill of Rights¹⁵¹ in 1689, it was rare that those residual powers which remained with the Crown, were used in defiance of parliament. During the Regency⁷⁶⁶ and throughout the reign of Queen Victoria⁶² (and particularly throughout the lengthy period of mourning and the consequent seclusion of the Queen following the death of the Prince Consort⁶⁴ in 1861) there has been a steady and continuous transfer of the Royal Prerogative from the Monarch, as a person, to the Crown, as an entity and to be exercised by the Government of the day. The greater part of the Royal Prerogative is now considered to be within the right of the Government, and not that of the Monarch! It is interesting to note that during the reign of King James I⁴⁹⁸, members of the judiciary (bravely at that time) held that the Common Law Courts were themselves able to limit the actual powers of the Royal Prerogative!

This erosion of the Monarch’s authority went relatively unnoticed, as most British Governments used the Prerogative in a responsible manner, and always protected the Monarch from any resultant criticism of its use. However, with the emergence of ‘new Labour’ (another term for Fabian Socialism)¹⁰⁷, and a Prime Minister in such a one as Tony Blair⁹⁸, who, with an absolute disdain of all convention, uses the Royal Prerogative as his personal decree, the Queen has come under increasing censure for not taking a stand against what many see as an erosion of their democratic rights.

What most people fail to understand is that Britain is a democracy under the Westminster System, which has evolved over the past three hundred years. Magna Carta¹⁵⁰ and the Bill of Rights¹⁵¹, which many protestors try to use to influence Her Majesty to take unilateral action against the Government, were actually treaties which seized power and authority from the Monarch and transferred them into the hands of the parliament.

Under the Westminster System, the main duty of the Monarch, or in the case of the Commonwealth Realms⁴⁹², the Governors-General, is to ensure that the Government goes to the people at or before stipulated times, or in the event it loses confidence in the lower house of parliament. The Monarch must also uphold the constitution, but in the United Kingdom the constitution is essentially vested in the parliament: therefore when constitutionally elected, it is the parliament which is constitutionally  paramount. 

The duty of the Monarch is to accept the advice of her Prime Minister, particularly (as is the case with Tony Blair) if that Prime Minister enjoys the confidence of the people. At the past three general elections it was the people who elected the Blair Labour Government to govern them, and Her Majesty the Queen can, and indeed must, do nothing to thwart the will of the people.

The new proposal of the Conservative Party is to transfer certain areas of the Prerogative, and in particular:

• committing troops overseas, and making and declaring war;
• making and ratifying international treaties, including European treaties;
• scrutinising and approving major public appointments (including oversight of the honours system)
• approving major changes to the structure and organisation of government.
• changing the process for recalling parliament, (a prerogative power which currently rests with the Speaker but can be exercised only on the initiative of ministers).

Whilst these powers do not require approval in the parliament, the parliament does have the authority to legislate to amend or even abolish them. A vote in the British parliament in 2003 to seek approval for Blair’s Declaration of War against Iraq was constitutionally a vote of confidence for the use of the Royal Prerogative.

This meant that Blair did not actually require parliamentary consent or even approval. Had support for the Iraqi War in the parliament been somewhat borderline, it is doubtful whether the Prime Minister would have taken the risk of seeking its approval for his actions.

Given the manner in which present and past governments of the United Kingdom have tended to act with blatant disregard of the wishes of the people, I would suggest that the proposal to remove the exercise of the Prerogative from the Prime Minister and to place it into the hands of an elected parliament may be a solution to the dilemma in which the Queen is presently placed.

The situation is vastly different in Australia due to Section 128 of our constitution which places constitutional change in the hands of the people through the referendum process and not, as is the case in the United Kingdom, in the hands of the parliament. This has resulted in the Royal Prerogative remaining relatively unchanged in the hands of the Governor-General.

However, notwithstanding this, Australian Prime Ministers have, in a presidential manner, nevertheless ‘usurped’ certain elements of the Prerogative which would be better placed with the parliament, but great care must be taken to ensure that the office of the Prime Minister is not unduly enhanced at the expense of the authority of the Governor-General and the Executive Council.