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Would becoming a republic be so simple?

By Thomas Howard Oct 21, 2019

Would becoming a republic be so simple?

Following the Prime Minister’s decision to prorogue Parliament, some Labour MPs have called for the UK to become a republic. This article will outline the possible forms a republic could take and explore the constitutional implications having an elected Head of State would cause. It is argued that the introduction of a President would radically change the UK’s constitutional setup and should be seen with scepticism.

Brexit is, once again, testing our uncodified constitution. The Prime Minister’s decision to advise the Queen to prorogue Parliament, which was given effect by an Order in Council, has been challenged in both the High Court and the Court of Session. Critics argue that the decision to suspend Parliament, mere weeks before the UK’s planned exit from the EU on October 31st 2019, is unconstitutional. The Government, in reply, argues that this unduly long parliamentary session should be brought to a close, so that it can bring forward a new legislative programme in the Queen’s Speech. The Supreme Court has since held that the prorogation was unlawful.1 This article will focus on a different but related matter. Some Labour MPs have argued that, since the Queen is constitutionally bound to follow the advice of her ministers, in this case their advice to prorogue Parliament, the country would be better suited having an elected Head of State. This article will explore some of the constitutional questions that the UK could face if it were to follow these MPs’ suggestion and abolish the monarchy. Moreover, it will be argued that the creation of Presidential role would either radically change the constitutional setup of the UK or be superfluous.

The first matter that must be considered if the monarchy is abolished is how its successor would be chosen. One option would be to hold a general election, which is the method of electing the President of Ireland.2 Alternatively, a special electoral body could be created, with its membership being drawn from Parliament and the devolved legislatures, similar to the German Federal Convention (Bundesversammlung).3 The method of electing the President is important as it would give some indication as to what type of powers this office would hold and, more importantly, how the holder would be expected to use them. Whilst technically the Queen has considerable power through the prerogatives, the day to day use of these powers is handled by her ministers. A President that is elected  by the people directly through contested elections could be expected to have a greater degree of freedom over the use of those powers than one that was chosen through other methods. Their position would be in stark contrast to a hereditary monarchy. Certainly, no one would be able to claim a directly elected President lacks a democratic mandate. They would be the only national directly elected figure in the country. It should be noted that even the German President does have discretion over the use of their powers, despite the lack of a direct election, although they exercise it with great caution.4 Given the fact that the Northern Ireland Assembly is currently suspended, it is submitted that a direct election would be the preferable model for the UK to follow, as opposed to adopting the German method. This ensures that all parts of the UK have a say in the choice of the President, not merely the countries with a functioning devolved legislature. The Labour MPs who have recently suggested the idea of a republic would seem to want the President not to be beholden to the Prime Minister, presumably in the hope that an elected Head of State would not have given the order to prorogue Parliament. Thus, a President who is able to have at least some discretion over the use of their powers is clearly envisaged. The desirability of the President having this freedom will be discussed below.

The leading campaign group in the UK in favour of abolishing the monarchy, Republic, describes on their website their suggestion for how a President would exercise their powers. What is immediately clear is that their solutions go beyond simply removing the monarch and replacing it with an identical elected figure; they are proposing radical changes to the existing constitutional framework. The President would not simply be ceremonial but would have the power to compel politicians to conform to a new codified constitution.5 Republic envisage the President presiding over the nomination of a new Prime Minister during a hung Parliament as well as speaking out on important issues of the day.6 By contrast, the Queen does not become involved in choosing the new Prime Minister herself, instead relying on the advice of ministers and is expected to remain silent and neutral on all political issues. They would also be able to use their limited powers according to certain official criteria, presumably laid out in the new constitution.7  This marks a fundamental break with the current constitutional arrangement. The desirability (or lack of) a codified constitution for the UK need not be considered here, it suffices to say it opens its own Pandora’s Box of constitutional issues.8 What does concern us now is that under this arrangement, the role of the President goes beyond that which the Queen currently has. No longer would the use of prerogatives rest upon the sole judgment of the Prime Minister. Depending upon how this new constitution is formulated, the President might be able to interfere with decisions we have come to expect to rest with the Prime Minister. Authorising military force or appointing ministers does not require Parliamentary approval, but the President could for example refuse to authorise military action unless the Commons voted in favour. Theresa May explicitly refused to seek a Commons vote over airstrikes in Syria but was able to authorise military action through the prerogative powers.9 This would mark a dramatic shift of power from the Prime Minister to the President. It would create a division of executive power that currently does not exist. The potential for conflict between the President and Prime Minister is obvious, especially if they belong to different political parties. It cannot be assumed that the party who is able to form a majority in the Commons would also win a Presidential election. Under the first past the post electoral system, a political party does not need to win a majority,10 or even a plurality of votes to form a Government.11 If, as regional mayors are elected, a runoff system with transferable votes is used to elect a President, which requires a majority of votes to be elected, it is possible that the President and Prime Minister could belong to different political parties. Even if the President was chosen by representatives from the devolved legislatures and Parliament, given that the largest political party in each body is different, it cannot be assumed the President would always belong to the same party as the Government.12 A key advantage of the UK’s current constitutional setup is its efficiency. The Government enjoys the support of the Commons and is able to pass legislation with relative ease to enact the policies it was elected on and can use the prerogative powers as it sees fit. Introducing a new powerful position could impede that process. It is submitted that such a change should be treated with great caution. It would create a powerful new constitutional figure who could, and likely would, challenge the Prime Minister’s authority.

Supporters of a powerful Presidential role may argue that the Prime Minister lacks sufficient scrutiny. Since they command a Commons majority, they (usually) have little difficulty winning votes. Thus, the separation of executive powers might be welcomed. However, this overlooks some features of the current constitutional arrangement. Firstly, Prime Ministers do face defeats in the Commons. The legislature is not entirely beholden to the executive and through defeating the Government in votes in the Commons acts as a check on their power. David Cameron was forced to abandon plans for airstrikes in Syria after failing to win a Commons vote on the matter. Whilst he still had the power to authorise military action, the political realities of the defeat prevented him from doing so.13 More fundamentally, it has become an understanding of the UK constitution that for as long as the Government can command a majority, it can exercise the prerogatives at its discretion. The Commons always retains the power to bring down a government that abuses these powers. Section 2 of the Fixed-term Parliaments Act 2011 lays out the procedure for passing a no confidence motion, which, if successful, can lead to a general election. Whilst the party whipping system means that the likelihood of a MP voting against their own party in government is low, as the current Brexit crisis has shown, MPs have expressed their willingness to do so if they feel the Government is abusing their powers, even if this means losing their party whip.14 In the argument for a powerful President, one should not ignore the fact that the Commons already retains the power to act as a check on the Government.

There are at least three alternative arrangements to a President who is able to use their powers in the way described above. Firstly, one could simply elect a President but with the clear understanding, either in statute or by constitutional convention, that they will simply follow the Prime Minister’s advice when exercising the prerogative powers. In essence, it would be the same system as now, but with an elected Head of State rather than a hereditary one. This would prevent the friction between the Prime Minister and the President. However, one needs to question the point of this. Their role would be simply ceremonial. There is a political question as to whether there is a point in electing someone to do the role the Queen currently does. Moreover, it would not appease the Labour MPs who have recently suggested a republic, as it would mean the President would exercise the perogatives in the same way the Queen currently does, in obedience with the Prime Minister’s instructions.

There is middle path of the powers of the Presidency that they could only intervene in cases where fundamental values and rights are at stake. Thus, there would not be the interference by the President in day to day affairs of Government. This is based on the notion that the Presidency would have some democratic mandate. This model should be rejected. The scope of what would fall into this rights category is intolerably unclear. Does this only include the rights protected in the European Convention of Human Rights (ECHR), or other issues such as socio-economic rights? If the former, the Human Rights Act 1998 already gives the courts ample powers to protect such rights,15 thus rendering the President’s power superfluous. Moreover, it is constitutional more appropriate for the courts to decide these matters since they are a better arbiter of what constitutes a breach of the ECHR than a President. If the President were allowed to intervene on a broader understanding of rights, the scope for intervention is indeterminable. A President may conclude that healthcare or education reforms fall under this remit. Ultimately, the courts would likely have to intervene to set the limits of Presidential power.

The third option would be to combine the roles of Head of State and Government. The Prime Minister could embody both. Since the use of prerogative powers already de facto rests with the Prime Minister, this would not be such a radical change. The only question that would need to be resolved is how the Prime Minister is appointed. Formally, the Sovereign appoints the person who can command the support of the Commons as Prime Minister. There would need to be a mechanism for appointing a new Prime Minister after a general election, resignation, or a vote of no confidence. Two options present themselves. Either the outgoing Prime Minister could appoint the person who would succeed them i.e. the leader of the party who has just won the election, or their own successor in their party. However, this might be politically unfashionable as it would mean leaders of opposite parties would have to appoint their rivals as Prime Minister e.g. an outgoing Conservative leader would have to appoint a Labour leader as Prime Minister. This issue is particularly troubling during hung Parliaments, such as the present, with a high chance of a successful no confidence motion. Section 2(3)(b) of the Fixed-term Parliaments Act 2011 allows for two weeks after a successful motion of no confidence for a confidence motion to pass, either restoring the existing government or installing a new one A Prime Minister who has just lost this vote might be tempted to refuse to appoint a successor, instead pressing for an election. Such a move has been suggested by Boris Johnson. There is an alternative mechanism which could avoid this problem. At the start of a new Parliament after an election, or during the two weeks after a successful no confidence vote, Parliament could pass a motion proclaiming the new Prime Minister with that person immediately being installed. It would be Parliament who exercises the power to appoint the Prime Minister, rather than the Head of State. For example, if Boris Johnson were to be defeated in a vote of no confidence and the Commons passed a confidence motion in another leader, such as Jeremy Corbyn, the latter would immediately become the Prime Minister. This method would remove the responsibility of the outgoing Prime Minister to name their successor. Moreover, this would give a clear indication that they can command the confidence of the House of Commons and in the majority of cases, it would be a mere formality. Usually one party will command a majority in the Commons, either by themselves or with an arrangement with smaller parties, and they would be able to pass a motion naming their party leader as Prime Minister. A statute would need to be passed to transfer the power of appointing the Prime Minister from the executive to Parliament. As the House of Lords decided in AG v. De Keyser’s Royal Hotel, if a statute replaces the prerogative then the prerogative is put in abeyance and the statutory scheme has to be used.16 Neither of these solutions would not be a radical departure from the current system, as the Queen does not choose herself who to appoint, but rather faces the realities of the Parliamentary mathematics. However, this arrangement would not satisfy the Labour MPs. Control of the prerogatives would still have been under the Prime Minister’s control.

In light of the Supreme Court’s decision, finding against the Government on the lawfulness of the prorogation, the need for an elected Head of State is somewhat weakened. The courts have shown that they are willing and able to hold the executive to account over the use of prerogative powers. Whilst the political use of the powers still lies with the Prime Minister, which under a Presidential system they may not, the courts will ensure they are used legally. The question remains whether a second political actor to act as a check on the Prime Minister is desirable.

Ultimately, the debate over whether the UK should transform into a republic is a political question. What this article has sought to sketch is some of the legal difficulties and questions the UK would face if it were ever to abolish the monarchy. It is doubtful whether it would be simple for the current constitutional arrangement to be translated into a republican format. The  creation of a Presidential role, that would have been able to refuse Johnson’s wish to prorogue Parliament, could have unintended consequences further down the line. If, as is more likely, the Sovereign was replaced with a President, it is doubtful they would maintain the same subservient role the monarchy plays to the Prime Minister. Their democratic legitimacy would likely mean they would engage in day to day politics, particularly in divisive issues such as Brexit. Such a marked change to the current constitution presents a real danger of creating constitutional crisis over conflicts between the President and Prime Minister that could not arise under the current system.

[1] R (on the application of Miller) v. The Prime Minister [2019] UKSC 41.

[2] Article 12 Constitution of Ireland.

[3] See Article 54 Basic Law for the Federal Republic of Germany.

[4] German Presidents have refused to sign laws which they consider unconstitutional under Article 82 Basic Law for the Federal Republic of Germany.

[5] Accessed 06/09/2019.

[6] Ibid.

[7] It is unclear whether they mean the full range of prerogative powers that currently rest with the Queen.

[8] See Bogdanor and Vogenauer, Enacting a British Constitution: some problems, (2008) Public Law 38.

[9] Syria air strikes: Theresa May says action ‘moral and legal’, BBC News, 17 April 2018, Accessed 27/09/19.

[10] The Conservative Party won a majority of seats in the 2015 general election with 36.9% of the votes.

[11] In the February 1974 general election, the Labour Party won the most seats but had a lower vote share than the Conservative Party.

[12] The largest party in the House of Commons after the 2017 general election was the Conservatives. Following the devolved legislature elections in 2016, the Scottish National Party (SNP) had the most seats in the Scottish Parliament, Labour being the largest in the Welsh Assembly. Following the 2017 election, the Democratic Unionist Party (DUP) had the most seats in the Northern Ireland Assembly.

[13] Syria crisis: Cameron loses Commons vote on Syria action, BBC News, 30 August 2013, Accessed 27/09/19.

[14] Dominic Grieve, Why I Voted Against the Government, European Movement UK, 5^th^ September 2019, Accessed 27/09/19.

[15] See especially ss 3,4 and 6 Human Rights Act 1998.

[16] [1920] AC 508, 540 (Lord Atkinson).

Article by Thomas Howard