“Ceremonial” heads of state and veto power: The case of the UK

Do I need to revise those lecture points about “fusion of powers” and “ceremonial head of state”?

Papers prepared by the Cabinet Office and recently made public shed light on the UK monarch’s employment of the veto (Guardian, 14 Jan.).

Most of the cases cited involve bills that directly affect crown interests, although one bill vetoed in 1999 was a private member’s bill concerning military actions against Iraq, and others have been on agricultural and housing bills.

The withholding of consent is on “advice” of ministers, so it would be misleading to see this as a runaway unaccountable monarchy blocking the normal functioning of parliamentary government. On the other hand, it seems a significant curtailment of “parliamentary sovereignty” if executive ministers can “advise” the monarch to veto bills duly passed by parliament.

Moreover, it seems that the veto can be to individual provisions of a bill. If so, then maybe I need to add UK to cases of not just veto, but also item veto!

30 thoughts on ““Ceremonial” heads of state and veto power: The case of the UK

  1. The Crown also has a pre-emtpive veto on bills with respect to the royal prerogative, although not in the Commonwealth realms. The prerogative is the default set of total powers and functions that have not been vested int he parliament or the courts. So in the Uk you cannot even introduce a bill without first getting royal consent on some legislation.

    The dirty secret of the Westminster system is that the royal prerogative now belongs to prime ministers whoa re quote eager to defend this medieval relic. John Howard actually declared war on al-Qa’ida on 12 September 2001 in Washington without consulting the cabinet.

  2. Yes, I missed that initially: most of these cases involve refusal of assent for introduction of a bill. And the government clearly controls the agenda in the UK system, whether on its own or via advising the monarch.

    (Thanks to Alan Renwick for pointing this out in another forum.)

  3. There is actually quite a close fit between the prerogative and the ‘inherent powers’ that were so beloved of the Bush administration. Amazingly enough the word has now become a fave with the Labor Right in Australia.

    Julia Gillard had a brief period of about 60 seconds or less when she believed she could override the opposition to her planned UN vote by invoking what she called the ‘leader’s prerogative’. She then had a rather unpleasant epiphany.

  4. Part of the stroy is Prince Charles’ letter-writing habits-bring attention of ministers to his hobby horses and worthy causes. Has there ever been a study if this kind of informal pressure, or at least nose-poking, has had any actual political impact-can the sovereign, because of the sovereigns prestige, get his way, at least at the margins?

  5. There also the delicate question of pre-advice advice. The most famous is probably when the Australian government announced that they would be advising George V to appoint an Australian as governor-general. The British government (then the transmission channel between Commonwealth realms and the palace) intimated to the Australian government that their advice would be unwelcome to the king, should not be tendered, and would not be transmitted by the British secretary of state for the colonies. Scullin, the prime minister of Australia, handed the written advice to George on a palace reception line.

    This was universally agreed by the British establishment, court, government and press to be frightfully bad form, although a subsequent Imperial Conference (meeting of British and dominion prime ministers) endorsed Australia’s position.

  6. My understanding is that the way constitutional monarchy is supposed to work is that the monarch always acts according to the advice of his/ her ministers on policy questions. The ministers in turn are responsible to the legislature, hence democratic control of the government to the extent the legislature is democratically elected.

    As was debated in an earlier thread, while the ministry requires the confidence of the legislature to continue, defeats on individual bills in themselves are not indicative of a lack of confidence. The legislature can pass a private member’s bill that the ministers oppose. The ministers need not resign and can advise the monarch to veto the bill. At this point the monarch is constitutionally entitled and in fact probably required to exercise the veto.

    Of the bills the Guardian listed, one seems to have fit that category, and the others seemed to impinge on how the Queen managed her household. One of the unique features of the British monarchy is the extent to which the monarch retained control of the royal household (in contrast for example to Japan). This arose from an early nineteenth century deal that was important in the development of the constitutional monarchy in the first place.

    Buckingham Palace has gone to great lengths to obscure the Queen’s continuing political role, but I think the only surprise in the article is how active she has been.

    Incidentally, someone should do a comparison of the political powers of the contemporaries Wilhelm II of Germany and George V (or Edward VII) of England. The German monarch was much more of a figurehead, and the British one much less of one, than is commonly believed.

  7. In Australia there are 2 kinds of veto. A bill can be vetoed by the governor-general. A bill can also be disallowed by the Queen within in one year, even thought it has received royal assent from the governor-general.

    No bill has ever been vetoed in Australia, although a couple were reserved for the Queen’s pleasure, rather than receiving assent from the governor-general. No bill has ever been disallowed by the Queen after receiving assent from the governor-general. The same is true for New Zealand and the Australian states. I’d be surprised it it is not also true for Canada.

    There is just no practice of the governor-general vetoing a bill that has passed the parliament. In the UK there has been no refusal of assent since the reign of Anne, 1702-1714. There is some fun history from the Colony of Victoria in the 1850s.

    I agree that the ministry does not have to resign on a particular defeat. The exceptions are where the ministry declare a particular bill (or indeed a procedural motion) a matter of confidence or where the House itself explicitly declares that confidence is withdrawn.

    If either happened the governor-general would have serious conversations with a prime minister who wanted to carry on without seeking a new vote of confidence or advising an election.

    In 1987 the then premier of Queensland tendered such advice to the governor, who rejected it. Ultimately the premier resigned.

    The Guardian cases are peculiar to Britain where a bill touching the royal prerogative cannot even be introduced without royal consent.

  8. On second look, there may be not much at all to this story.

    It appears that some bills are not even being introduced in the House of Commons out of deference to objections from Buckingham Palace.

    However, most bills introduced in the House of Commons are government bills. Probably during the normal course of business, civil servants would check to see if some piece of government-introduced legislation adversely affected the monarchy before their minister introduces the bill (both the civil servant and the minister technically work for the Queen!).

    This is really only an issue with private members bills and motions made by the Opposition. Again, most modern day Leaders of the Opposition would be sensitive about impinging on the royal household. Its rare for a private members bill to get anywhere, or even debated, unless the government favors it.

    So the article might be describing a routine practice of civil servants in the appropriate government ministry checking with the civil servants attached to the Court to see if some mooted piece of legislation affects the royal household.

    Matters are no doubt different in Australian and Canada where Queen owns little in the way of property, either by virtue of her position or personally.

  9. As with prorogation there is a really good case for abolishing the ‘prerogative veto’. The Commonwealth realms regularly legislate on the royal prerogative without prior royal or viceregal consent and the world has not fallen down. I can see there is a case for insulating the private interests of the royal household from some legislation. Many constitutions insulate the head of state from salary decreases and so forth.

    The prerogative veto is exercised on advice anyway, so it is hard to see how its continuance serves any purpose.

  10. Compare and contrast:

    1. In the USA, UK, and Australia (inter alia), finance bills can only begin in the Lower House, not the Upper. This applies regardless of whether the Upper House is easily overridden (UK), dissoluble (Australia), or neither overridable nor dissoluble (USA).

    2. However, in the UK and Australia, finance bills cannot even be considered by the Lower House unless they have been recommended by message from the Crown.

    3. Whereas in the USA, the President has no greater veto power over budget measures than over ordinary legislation.

  11. #3 has, at times been particularly contentious. The Line-Item Veto law was intended to allow the President greater authority over the budgetary process (by allowing him to veto pork-barrel projects without killing an entire bill), but the Supreme Court ruled that it was unconstitutional, and that the only constitutionally acceptable way to veto was to veto an entire bill.

  12. @12

    And yet weirdly both the line-item veto is quite common in state constitutions. I really need to read Sandy Levinson’s book, Framed. And reforming political scientists need to collaborate more with reforming constitutional lawyers.

  13. I think this best fits here, though maybe it should be its own thread.

    The Washington Post ran a column defending constitutional monarchy which, while the arguments are framed in a jokey manner, has much more analytical heft than the norm for newspaper columns (the article includes charts comparing different constitutional arrangements). The core of the argument is that constitutional monarchy leads to a greater amount of democracy in government formation than does either directly or indirectly elected presidents.

    The column can be found here:

    http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/23/shut-up-royal-baby-haters-monarchy-is-awesome/

    I found one minor error, in that the columnist makes the claim that Prime Ministers are never also heads of state. He didn’t realize that this essentially is the case in South Africa. But many of the commentators did grasp that combining the head of government and the head of state is a bad idea which has weakened the U.S. system.

  14. The minor weakness of the article is the assumption that all constitutional monarchies have have parliaments that can be dissolved at the pleasure of the prime minister. As discussed many times here that is not true in Sweden, or in half the Australian states.

    The major weakness is that the US has a system of privatised and distributed monarchy. Maintaining a large galaxy of media personalities on giant incomes is considerably more expensive than a single royal family.

    • Alan, I think you meant Norway. The Norwegian Storting is not subject to dissolution. I am not sure about Sweden, though I do not require it being listed among parliamentary systems with fixed terms.

      It should also be noted that, even where parliament can be dissolved, it is rarely along the lines of the Westminster custom that it is (at least de facto) at the discretion of the prime minister. Normally it is an (unelected) president’s formal authority, with variation in the degree to which the president might ever refuse a dissolution request. Then there is the Israeli case where most early dissolutions occur only upon a vote by a majority of the Knesset.

  15. Botswana/South African system where the President is also the Prime Minister seems to be relatively rare. One wonders how such a system would work, if there were ever a change in government as both countries have dominant party systems.

    What would happen in Botswana or South Africa if no party won a majority, how would a government be formed? Would a minority government ever be formed?

    South Africa’s constitution allows early elections only after 3 years into a Parliamentary Term.

  16. The early Provisional Government of the Irish Republic (1918-22) was headed by a President elected and removable by the Dail. It was only the next stage that split the positions of Uachtaran and Taoiseach.

  17. The argument that “monarchies lead to more stable democracies” is a bit like arguing that having a lot of thousand-year-old buildings standing prevents your country from suffering earthquakes.

  18. @18

    South Africa’s constitution requires an early election if there is a presidential vacancy and the national assembly does not elect a new president within 28 days.

  19. @MSS The Riksdag can be dissolved by the government at pleasure, but the new Riksdag gets only the unexpired term of the previous legislature. Not quite fixed or non-fixed, but closer, I think, to a fixed term than not. The ‘Swedish rule’ is followed in a couple of Australian jurisdictions. The effect here is that early elections are remarkably infrequent in those parliaments.

    • Thanks, Alan. I did not recall that provision on Swedish dissolution. Note, however, that this should not be seen as an approximation to fixed terms. The provision still offers an electoral way out of a parliamentary impasse, which was the point of Dylan Matthews. Having the newly elected parliament serve out only the remainder of the dissolved one may be a deterrent to its use, of course.

      Portugal (a semi-presidential system) has a similar provision, if I recall correctly.

  20. I’d tend to class both (a) constitutionally-restricted grounds for an early election (Germany, Victoria) and (b) the Swedish rule, as viae mediae between (1) dissolution at will for a full new term (Australia, NZ and previously UK and Canada) and (2) absolutely fixed terms (USA, Switzerland, Norway… Japan’s upper house too?). Both forks in the path aim to allow early elections to break genuine deadlocks while either (a) legally prohibiting or (b) politically deterring, early elections for partisan advantage.

  21. The Swedish rule has the great advantage of not requiring the head of state to determine the matter.

    In Sweden a prime minister who loses confidence has a week to order an early election.although there is no guarantee of re-appointmentafter the election. I think it would be much better to continue the incumbent parliament if a new government that has confidence can be formed.

    I guess the mechanism would be to retain the prime minister for a short time during which the parliament could call on the head of state to appoint a new prime minister.

  22. Since we’re on the topic… I’ve been wondering for a while now…
    Why do we need a Head of State anyhow?

    (To be clear, I’m not questioning the proposition of a SEPARATE Head of State as opposed to combination with Head of Government – when the positions are combined, there is still a Head of State.

    So the question is more… could a state have its powers and roles spread out in such a way that there would be no Head of State?

  23. The only case I know where the speaker is (sort of) head of state is Sweden, which somewhat manages to prve JD’s point by distributing traditional head of state functions between the king and the speaker.

    PNG does the same,in the sense that legislation is certified by the speaker rather than the head of state*. I’m not sure,after last year’s flurry of legislation against the supreme court, that certification by the speaker of a unicameral assembly is enough.

    There was a silly debate in Oz in 1999 between republicans who claimed the queen is head of state of Australia (and should therefore be replaced by an Australian) and royalists who claimed the governor-general is head of state. The PNG constitution answers this by specifying that ‘head of state’ means the Queen or the Governor-General depending on context.

    It seems to me that issues of accountability in modern governance are quite complex enough without trying to disguise the head of state as the prime minister, the speaker, or the gonfalonier of justice.

  24. Alan: indeed, the Speaker certifies bills in PNG, but is this instead of Royal Assent?

    As to the Swedish case, if the “rule has the great advantage of not requiring the head of state to determine the matter [of the composition of the government]”, that means it is a non-essential function of being a Head of State, as the King would otherwise no longer be Head of State but would share headship with the Speaker. Would anything happen if Sweden abolished the monarchy simply by removing the King without formal replacement? It seems to me that in that case there would not be any need to designate a new Head of State; however, I strongly suspect that they would nonetheless create a presidency or designate the Speaker as Head of State…

  25. @JD, of course it can be done. For that matter you could declare you could go all Athenian and rotate it to a random citizen every 24 hours.

    I am not sure it’s a good idea though. There is no royal assent in PNG, certification by the speaker completes the legislative process. That led to trouble last year when a gungho speaker was accused of certifying laws that had not actually passed the parliament.

    The thing is someone has to perform these functions, legislative assent, treaty ratification, state representation, symbolic leadership etc etc. I just don’t see the advantage of loading it onto the speaker who already has a fairly demanding job and is sometimes compromised by being a member of the legislative majority. Ditto giving it to the chief justice or some other figure.

    On the other hand if you merely abolished the role, apart from the diplomatic complications, the chief executive would end up as the symbolic leader and I think we have long agreed on this blog that is a very, very bad idea.

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