Royal prerogative case study: calling an election

How significant a power is this in reality?

First of all, what is the royal prerogative?

According to this website:

"The ‘royal prerogative’ refers to powers originally held by British monarchy on an absolutist, arbitrary basis, before the days of parliamentary democracy."

The Constitution Unit at the UCL provide a great backgrounder on its status here - an excellent source for a flipped classroom activity on the relative importance of sources of the UK constitution.

And it's on that theme that we turn to here, to provide some context on the PM's ability to set the election date.

As students of Politics are no doubt aware, the UK is among a handful of nations in having an uncodified constitution. That is to say that, like New Zealand, the body of laws, practices and customs that establish the organs of the state, the relationship between these organs, as well as the relationship between these organs, and the relationship between these organs and the people is not to be found in one single document. This serves as a contrast to the world’s oldest surviving codified constitution, that of the USA, written in 1787. The UK constitution is sometimes referred to as being “unwritten”, but it is better described as “partly written” (Budge et al) and therefore Acts of Parliament could be considered as key.

For many, statute law can be considered the most important source since it determines the scope of government, and the arrangements between the constituent parts of the government architecture. For example, the HRA 1998 ushered in dramatic changes since judges were able post 2000, when the Act came into effect, to issue declarations of incompatibility – finding existing law at variance with provisions of the ECHR. This included some very high profile cases affecting terrorism. The Parliament Acts of 1911 and 1949 fundamentally altered the co-equal nature of our bicameral legislature. The 1969 Representation of the People Act, and the 2011 Parliament Act, respectively, impacted upon the conduct and timing of elections. The 1972 European Communities Act has in many regards fundamentally eroded parliamentary sovereignty.

Because statute is one of the written parts of the constitution it is knowable. As a result we can identify clearly how parts of our constitution are supposed to work, e.g. the CRA 2005 legislated for a clearer separation of powers and established the Lord Chief Justice as head of the judiciary (replacing the Lord Chancellor). Statute thus has an educative effect, in contrast to conventions which are often not written down and therefore unknowable. What is supposed to happen after a hung parliament, for instance? Conventions are also vague and therefore not always adhered to, or subject to legal challenge.

Because of the principle of parliamentary sovereignty, where no parliament can bind its successor, parliament ultimately holds the upper hand since it could legislate to leave the ECHR or the EU if the UK faced a legal challenge from one of these bodies that it did not agree with. Likewise, parliament could (although it would probably be unwise to do so) reverse the devolution process by repealing, for example, the Scotland Act 1999.

Statute law is the source that best reflects the fact that the UK has a “living constitution”, i.e. it is organic. Allied to its flexibility (changes do not require super majorities to overcome entrenchment) it means legislation can be created quickly to suit changing times. This serves as a contrast to the US constitution. Take as an example the UK response to the Dunblane massacre in comparison to the impediment of America’s 2nd Amendment.

On the other hand, the royal prerogative could be said to rival statute since it is the basis of much of executive power. The history of the UK constitution over the past three centuries has been the gradual, and peaceful, transition of power from the monarch to parliament, and over the twentieth century from parliament to the executive and domineering prime ministers. The prime minister via the power of patronage has the power to make or break ministerial careers, and thus through sheer political will can shape the country according to their own agenda. Additionally there is no legal requirement for the PM to seek approval of the legislature to declare war. For instance, Britain entered the Great War in 1914 purely on the basis of royal prerogative.

Added to that, the incumbent of Number 10 also has the power to decide when the country votes in a general election. There was a temporary hiatus or parenthesis in the constitutional status of this power as a result of the Fixed Term Parliaments Act of 2011. This was essentially in response to pressure from the Lib Dems in coalition who were worried that the dominant coalition partner, the Cameron-led Conservatives, would go to the country well before the end of the parliamentary term in the hope of forming a single party government if the polls were favourable. The 2011 act was subsequently overturned by statute in 2022.

So, on the surface, it would seem that being to call an election whenever a PM wants hands them a good deal of power. As a recent article in the Guardian points out with reference to the decision Rishi Sunak as PM has to make is that realpolitik limits his room for manoeuvre.