30th June 2022
This was an amusing exchange today on Twitter between two journalists:
Sorry, part of our dumbass constitution is a letter written to the Times *under a pseudonym*?
— Jim Waterson (@jimwaterson) June 30, 2022
Yes, part of our [expletive] constitution is (or was) a letter written to the Times *under a pseudonym*.
Because the United Kingdom does not have a codified constitution, the sources of our constitutional law (and lore) are in many places.
As is sometimes said, the United Kingdom does have a written constitution – it is just not written down in one place.
Some of the sources are cases and statutes, some of the sources are authoritative textbooks and guidance, and – in this case – it is a letter to a newspaper.
According to Professor Wikipedia (as I cannot find the letter on the Times website), the operative test of the 1950 letter is as follows:
“In so far as this matter can be publicly discussed, it can be properly assumed that no wise Sovereign—that is, one who has at heart the true interest of the country, the constitution, and the Monarchy—would deny a dissolution to his Prime Minister unless he were satisfied that: (1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General Election would be detrimental to the national economy; (3) he could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons.
“When Sir Patrick Duncan refused a dissolution to his Prime Minister in South Africa in 1939, all these conditions were satisfied: when Lord Byng did the same in Canada in 1926, they appeared to be, but in the event the third proved illusory.”
That last sentence is especially interesting because it reminds us that our monarch is also the monarch of elsewhere, and the author of the letter purports to draw a general view from instances of where the monarch’s power has been exercised (or not exercised) in other jurisdictions.
The basis of the letter is therefore not (it seems) what the author thinks should be the case, but a statement of what is practically the case.
Since this 1950 letter at least two things have happened which casts doubt on whether that is still a correct statement of practice.
The first is the further depoliticisation of the Crown – just as a statement from the 1830s or 1880s would not necessarily be a good guide to the position in 1950, a statement from 1950 may not necessarily be a good statement of the position in the 2020s.
The second was the 1975 Constitutional Crisis in Australia.
That crisis is still felt with a shudder in Buckingham Palace and elsewhere.
The fall-out from the 1975 crisis was such that it probably negates any prior general statements of about the position of the monarch in respect of a Prime Minister and practical politics.
It may therefore be that the 1950 statement is no longer a reliable guide to what the monarch understands to be the constitutional position in respect of a request by a Prime Minister for a dissolution.
And, furthermore, Parliament has also since 1950 enacted and then repealed the Fixed-term Parliaments Act, which presumably shows that Parliament intends the Prime Minister to have the power to ask for parliament to be dissolved.
But.
Two things should not be conflated.
The first thing is whether the Monarch is able to refuse a request for a dissolution, full stop.
The second is whether the 1950 statement is still a reliable expression of when the monarch can and cannot do so.
One of the merits of the Crown in the constitution of the United Kingdom is not so much the power which the Crown has, but the powers it prevents others from having.
There is something welcome in a Prime Minister not having absolute powers – even if the check and balance is a hereditary head of state.
*
No doubt, the monarch may be more reluctant in the 2020s than before to refuse a request by the Prime Minister for Parliament to be dissolved.
But that does not mean that the residual power of refusal has been abandoned completely.
The Queen may still refuse a request by the current Prime Minister for a dissolution.
We just cannot today be certain what the criteria for such a refusal would be,
And if any well-connected and informed person can tell us the current position, please comment below – using an appropriate pseudonym.
***
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I posted this as a tweet but perhaps should first have put it here:
“This is odd: ‘The Queen may refuse a request by the PM for a dissolution [of Parliament, but we do not know] what the criteria for such a refusal would be.’ If a constitution is law (and how can it not be?), this is incompatible with the rule of law.”
Maybe it’s because I am a Continentinal?
In the same vein: If the UK constitution is law, what are the rules for changing it?
The British constitution is commonly perceived as being not exclusively law. It is made up of many political conventions including the Lascelles principles. This arguably gives it a greater fluidity/flexibility than exclusively legal constitutions. Political conventions could change or evolve, but traditionally the UK has relied on their leaders being “good chaps” and following the most important conventions. In recent years this theory has arguably deteriorated with political actors being increasingly willing to push the extent of often ambiguous conventions, or flat out break them. This is where I think your rule of law point comes in. Part of the common theory of the rule of law is the quality of legal certainty, people should be able to find, understand and know the law in order to plan their lives. The justification for this is arguably less strong when applied to political leaders in their official capacity. Instead of the rules being exactly clear there is value in the rules being ambiguous (but with often clear spirit). It may dissuade political actors from inappropriate acts if they cannot be certain that they will be able to argue a technicality in the rule/convention or even pray in aid of the convention having no binding force at all. A good example of this is the Miller II case, there were some conventions, or at least standard practices surrounding the use of prorogation of Parliament but it was uncertain if there was any legal limit on the power of prorogation. The UKSC decided there was a legal limit and that the government had not been within it. I believe Lord Sumption described the decision as hardening a convention into Law. Others would argue the legal limit must have existed alongside the conventions, before the legal case. Either way, the fact that we did not know if there was a legal limit until there had been several hearings ending in the UKSC arguably acts as a significant deterrent against political leaders ignoring or eroding our most important political conventions. So there is an argument that in Constitututional law (that which governs the relationship between state institutions), rather than public law more widely, legal uncertainty is valuable and supports the UK’s political constitution.
Is there a version of the ‘no true Scotsman’ reasoning here? The letter says ‘no wise Monarch…’, presumably leaving open the route that if a Monarch failed to follow the letter’s advice they could be accused of being unwise?
Thank you for reminding us of the ghastly events of 1975: definitely an episode that the Crown would want to – but must not – forget.
Part of our ‘Constitution’ is, I believe, an expectation that the Prime Minister, and only the Prime Minister, can advise the Monarch on political matters. Thus, if the PM advises that s/he needs a dissolution, as in 2017 and 2019, it is not open to the Crown to take soundings to see if someone else could carry on without one.
On the other hand, if the issue is something less ‘routine’ like a prorogation, the question is more open: hence the outrage at the (rumoured) deceit practised by the PM earlier in 2019. If the PM had said something like “Your Maj, I’m in a spot of a bind and I need you to prorogue Parliament for a few weeks until we’ve got the Brexit business sorted” – which I take it was his actual motive – could she have said “No!”? I rather doubt it but others, including the Supreme Court, may well have a different view.
But this is the problem with the Prerogative (and perhaps all constitutions): they work fine until you really need them.
Re your “it is not open to the Crown to take soundings…”: interestingly, the same Lascelles letter addresses this, positing that “The problem of such a choice [Viz. whether to grant the PM’s request for dissolution] is entirely personal to the Sovereign, though he [sic] is, of course, free to seek informal advice from anybody whom he thinks fit to consult.” It would be fair to say that “informal” here is doing some heavy lifting, and may be more a concession to realpolitik than an assertion of constitutional convention. And of course as the OP acknowledges, 70+ years is a long time even in matters of constitutional law and practice!
“no wise Sovereign—that is, one who has at heart the true interest of the country, the constitution, and the Monarchy—would…”
He wrote that in 1950, 14 years after the abdication of that scallywag Edward VIII.
Times have changed…
I suspect that, in practice, it is barely conceivable that any monarch would refuse the advice and request of his or her prime minister. And any codification of the rules into a codified, written constitution would, almost invariably, remove even that small amount of discretion from the head of state, and thus increase the power of the prime minister. We would still be in a position where the prime minister is essentially untrammelled, other than by his or her own party, when in possession of a parliamentary majority.
We rely on the PM and his or her party being honourable.
A, perhaps, interesting side-note in this regard is that the Irish Constitution grants a very limited number of so-called “reserve” powers to the President, who otherwise enjoys an entirely symbolic role. One is the refusal of dissolution of the Daily (lower house), but only where the Taoiseach (Prime Minister) has lost the confidence of the House. It has been consistently suggested that the Lascelles Principles apply in such a case, as a matter of convention, although the matter is strictly entirely within the President’s discretion. The final interesting point in this regard is that this is the only “reserve” power which the President is entitled to exercise without having first convened the Council of State, to ascertain its views.
Item (2) of the quotation from Wikipedia struck me as surprising: not for what it includes but for what it omits.
We might perhaps agree, within the bounds of possibility, that the risk of dire economic harm might be grounds for declining a request for the dissolution of parliament.
Yet surely that can’t be it?
How about: in a fit of pique, the serving Prime Minister declares war on a neighbouring country, say one with whom the nation is experiencing dispute, orders armed forces in to battle and then pays the Queen a visit…
Or how about: in the time of a grave global pandemic, when the nation and half or more of sitting MPs have contracted a contagious virus, the serving Prime Minister decides that an election would be a good idea…
All of which is to observe that we might be able to determine a small but perfectly formed number of reasons why dissolution would be a rather foolish step to take.
And I feel a bit guilty for what is tantamount to a change of subject, but am reminded of the controversy that arose when our current PM chose to prorogue parliament in 2019, in a move that many decried at the time to be a somewhat under-handed attempt to deprive parliament of the means to scrutinise the governments plans for Brexit.
Yet these are related in the sense that their enactment is, in effect, the equivalent of activating the government’s autopilot: probably not controversial in we are cruising along in smooth air with good visibility, but probably not wise if we are in a 70-degree dive through a thunderstorm, at night, pushing 400 knots.
Fascinating, but one thing I am not clear on is how it was clearly established that SENEX was definitively Lascelles and therefore the letter could be used as a definitive source of constitutional law?
I understand that “Senex” was identified as Lascelles in the official biography of George VI published by Sir John Wheeler Wheeler-Bennett in 1958. The claim is repeated in many works about the period and the personnel. Lascelles survived to 1981 so had amply opportunity to confirm or deny but I’m not aware he ever did.
Some libraries give access to online resources, such as the Times digital archive at gale.com, where the letter can be found on page 5 of Issue 51680 for Tuesday, May 2, 1950. This link may work: https://link.gale.com/apps/doc/CS84888226/TTDA
There is an article in the times in 1977 by Philip Howard which explains that the letter from “Senex” was part of a long correspondence between various constitutional experts, on whether or not the king would be entitled to ask Churchill to form a government if Attlee sought an immediate dissolution after “winning” the general election in February 1950 with a bare 6 seat majority (the Speaker was a Conservative). In the event, Attlee carried on for 18 months and the lost in October 1951. (And the 1974 Labour government carried on past 1977 with the Lib-Lab pact, and then as a minority until 1979.)
The Lascelles Statement is not legislation or a court decision, just the emollient words of a courtier trying to smooth over a difficulty. I would assert that, insofar as it has meaning or effect, it is just saying “a monarch would almost always grant a prime minister’s request for a dissolution, unless there is a very good reason to refuse” and “very good reason” being primarily that another person could proceed for a reasonable period with the confidence of the House of Commons as presently constituted, and the disruption of another general election at this time would be a bad thing.
Or, to put it another way, in principle there is a reserve power, but the circumstances would have to be extreme for it ever to be used. In all realistic circumstances, the monarch will do as the prime minister requests.
” just the emollient words of a courtier”
This is not correct, as he gives two practical examples. Whatever you think of those examples, their very existence in that letter means that the letter did not consist only of “emollient words”.
Perhaps not “just” emollient words: it was also a courtier’s attempt to attempt to encapsulate a constitutional convention. But why?
As I see it, “Senex” was attempting tease out a principle from those two examples (and probably others, such as Lloyd George in 1918, or Baldwin in 1923) in a context where there was much debate in the UK press in 1950 about what the constitutional position may or may not be. He was not trying to write a constitutional treatise: he was trying to calm the situation down with some soothing words.
But again, this is an area where the position is sufficiently vague that reasonable people can reasonably disagree about what the convention actually is, and what might or might not happen in particular circumstances.
To some extent, they are making it up as they go along: a convention describes what has happened in practice before and what might be expected to happen in similar circumstances in the future, but it is not binding or prescriptive.
The example from South Africa 1939 was a prime minister who asked for a general election to test whether or not South Africa should stand beside the UK as a belligerent in the Second World War, or should remain neutral. The prime minister, J. B. M. Hertzog, formerly a Boer general like Jan Smuts, wished to remain neutral, but his own party did not agree with him. He resigned, Smuts replaced him, and won the next election in 1943. This is an apotheosis of an extreme circumstance, and fits my description: someone else could and did take over, and an election at that time would have been a bad thing.
The example from Canada in 1926 (the “King-Byng affair”) was a Liberal prime minister, W.L. Mackenzie King, reneging on his promise to allow the Conservatives – the largest party after an election the previous year – an opportunity to try to form a government before calling the next general election. Mackenzie King had lost the 1925 election but refused to resign, and tried to govern with a minority. (King had even lost his own seat in York North, Ontario, and had to persuade another MP to resign to take his seat in Prince Albert, Saskatchewan.) When he found he could not govern as he wished, he wanted to call another election in 1926 instead of resigning. In the event, the Conservatives found they could not govern either, and there was an election later in 1926 anyway, which King won more seats and could govern again with a minority (supported by the Liberal-Progressives). So Byng probably should have allowed the prime minster to break his word.
This crisis was one of the drivers leading to the adoption of the Statute of Westminster in 1931, to confirm the loosening relationship between the UK and the Dominions.
Anyway, thanks for the excuse to dig into some obscure corners of constitutional history.
No worries, Andrew, and thank you for your informative response
It is those two examples, from which the author of the letter is seeking to draw a general lesson, which interest me most about the letter.
The letter – at least in its anonymous form – is not an appeal to the authority of the letter writer. The impression the letter writer wishes to give is that the authority for the propositions being put forward comes from the practice as set out in those two examples.
That is a fair point – it started as just one letter from an anonymous “sagacious old man”.
I wonder how much of a nod and a wink there was at the time. You can imagine the conversations in gentlemen’s clubs – “have you seen what “senex” wrote in the Times yesterday?”.
I’ve not dug into the archives to see what the nature of the correspondence or dispute was up to that point, or what immediate impact that letter had. It might be instructive to consult a work on constitutional matters published just before it was published, and another shortly after, to see how much impact it had before the author’s identity was known. It could not have been the “Lascelles Principles” before 1958.
Interesting how such ephemera get hardened into binding rules.
The Salisbury Convention is another simple statement – based on the situation at the time, that the inbuilt Conservative majority in the Lord could block any legislation, even if another party had an overwhelming majority in the Commons – that has become and remains almost unchallengeable. The composition of the Lords today is very different today, but there would be a constitutional crisis if the Lords were ever to challenge it, and (I expect) a change to the composition of Parliament in short order afterwards. The implicit threat remains in place that the prime minister could ask the monarch to appoint as many peers as necessary to get the government’s business through.
Thank you for the background to Senex, most instructive
The article is scanned as part of the Times archive. I just did a screen grab and created a JPEG.
The 1975 Australian crisis was triggered by the summary dismissal of the Whitman government by the Governor-General – who it later turned out had acted on his own initiative and misinformed Queen Elizabeth.
However given the increasingly lawless nature of the Johnson government in the UK (which I believe will only get worse as these are not good people), the germane question is not whether HM can refuse a request from Johnson for dissolution for an election but instead whether HM can dismiss the Johnson government and force a GE precisely because after taking advice she recognises that this government is a clear & present danger to the UK democracy?
As I have said in an earlier post it’s time all good people realised that the Barbarians are not merely at the gates but in fact have occupied the high castle.
Your question is pertinent but – notwithstanding the Whitlam ‘mistake’ (or perhaps because of it) I seriously believe that if Her, or later His, Majesty were to dissolve Parliament against the wishes of the Prime Minister it would be the last thing the Crown did. (This might not apply if the PM refused to acknowledge a valid vote of No Confidence.)
This is all very much ‘in extremis’ stuff but the character of our current PM and the nature of the Cabinet – nicely characterised by Andrew Rawnsley in this quote: “A shiver is going around members of the cabinet looking for a spine to run down.” – means that extremis may not be as far away as we thought.
I do agree any discussion of dismissal of the government by HM is hypothetical, however if anyone does not yet understand or denies the very real and present mortal danger looming over the rule of law and democracy in the UK, then reading Chris Grey’s blog of July 1st will be like having a bucket of icy water thrown over them.
In Australia in June 1909 the governor-general Lord Dudley refused a request for a dissolution by the Labor prime minister Andrew Fisher, whose government had lost a vote on the floor of the House of Representatives. The circumstances were somewhat unique in that, from its inception in 1901, members of the Commonwealth parliament had belonged to one of three parties: Free Trade, Protectionist, and Labor. One of the parties would form government with the support of one of the other two. This period of ‘the three elevens’, as it was called, came to an end in May 1909 when the Free Trade and Protectionist parties fused to become the Liberal Party. It was the combined vote of the fusion members that defeated the government. It is understandable, therefore, that Lord Dudley would have been satisfied as to conditions 1 and 3 of what later came to be called the Lascelles principles. Condition 2 would not have loomed large as the parliament had less than a year to run. When it ran its course, Labor got its chance to appeal to the people. And, at the elections held in April 1910, it won a substantial majority, enabling Fisher to form the world’s first majority Labor government.
What this shows is that, even with a constitution contained in a single document, the political conventions which Australia inherited from Westminster still apply and we too rely on “good chaps” to follow those conventions. Unfortunately, that did not occur in 1975 when conventions were set aside by an opposition in pursuit of power and a governor-general fearful of being sacked before he sacked his prime minister.
I expect reasonable people can reasonably disagree about whether Kerr’s actions in 1975 were advisable or not. Whitlam’s government was stuck and unable to pass legislation. Kerr had been appointed on Whitlam’s nomination, and he clearly had the power to do what he did.
For me, the acid test is that Gough Whitlam lost the resulting election in 1975 but a considerable margin, and lost again in 1977 (and his opponent Malcolm Fraser won a third time in 1980).
Would the Queen take the gamble of dissolving Parliament if Johnson had not asked for it? I doubt it – the downside risk is too great, particularly if the Conservatives were reelected with a majority. The chances of her rejecting a request for a dissolution may be slightly higher, particularly after the 2019 prorogation debacle, but still negligible in my view.
As things stand, the existing principles would prevent Her Majesty from refusing a dissolution, as there’s a single party with a majority and therefore no possibility for anyone other than the leader of the party to form a government. Where things would potentially get interesting is if Johnson were to threaten Tory MPs with an election if they vote No Confidence in him as party leader, they call his bluff and he then goes through with the threat, calling an election during the period when the Tories have no new leader and he remains PM.
The principles as set out in the letter don’t consider the situation where no-one can currently command a majority, but there will be someone able to do so in a few weeks.
But in 1975, the action of the Governor-General of Australia was, in effect, vindicated by the subsequent general election. Ultimately, who protected the people?
So you think that any time a government goes behind in the polls the ‘over-arching authority’ – president or king – is entitled to force a general election? What else does your ‘vindication’ mean?
I remember a Radio 4 piece about two decades ago by someone who I respected in these matters (but know do not remember who). The piece was about how the current Queen was used her constitutional powers three times in the UK and each time she has effectively lost that power.
One was appointing the Archbishop of Canterbury(1) and one was picking the next Prime Minister when the leading (Conservative) party did not have a formal leader.
In both cases there was a desirable choice and one which tradition, seniority and precedent said she had to choose. IIRC in both cases being the constitutional back-stop it was seen (or she felt) that she had to make the choice that did not rock the boat.
After the first(2), the choice of Archbishop was then changed so that the PM would give the monarch an *ordered* list of three, so that the effective choice became that of the PM.
After the second, the Conservative party instituted a formal leader and mechanism for selecting one.
The third such occasion related to dissolution or prorogation of parliament; since it involved Queen Elizabeth II, it postdates 1950 and thus will have affected the current position.
David+Sweet commented:
I seriously believe that if Her, or later His, Majesty were to dissolve Parliament against the wishes of the Prime Minister it would be the last thing the Crown did.
The radio piece partially supports this, but may suggest that things would not go that far.
(1) My memory is such that it could have been York.
(2) My ordering, not necessarily chronologically.
Can you recall which (arch)bishop it was? The closest I can think of is Jim Thompson, then Bishop of Stepney who was proposed as Bishop of Birmingham in 1987.
At that time, since at least the 1970s, the procedure was that a CofE appointments committee would recommend two candidates to the prime minister, and the convention was that the prime minister would invariably nominate the first on the list to the monarch to be appointed. Margaret Thatcher did not want Thompson, who had taken public political positions in opposition to the government, and she passed on the second name instead: Mark Santer.
Since 2007, the appointments committee now recommends a single candidate to the prime minister (with the option of keeping a second in reserve, in case of a problem).
Was it Robert Runcie? I’ve seen it rumoured (but not confirmed) that Hugh Montefiore (coincidentally, recently installed as Bishop of Birmingham; it was his retirement in 1987 that led to the appointment of Santer) may have been first on the list in 1979, but again due to his political views was rejected by Thatcher, and she nominated Runcie instead.
Is the suggestion that that Queen was involved in which selecting which name was sent to her by the prime minister, or that could have and should have overruled the prime minister’s recommendation?
Presumably the Conservative prime minister was Douglas Home? As I understand it, on his resignation from his hospital bed in 1963, Macmillan advised the Queen to send for Home, and she took Macmillan’s advice rather than asking for someone else, such as Rab Butler.
From that, I suspect the thrust of the programme was that in each case the monarch has accepted the advice of the prime minister, rather than making another choice, as might be theoretically possible.
When was the third instance, relating to dissolution or prorogation? 1974?
I think the Archbishop was before Thatcher; if it were she I would have had a memory of the people to compare with the story on the radio.
Home, MacMillan and Butler seem likely names for the PM.
Parliament was probably before 1974. I wouldn’t have heard (or at least taken in) about dissolution or prorogation then, but I do remember watching for the results of both 1974 elections.
I believe that one of the 1974 dissolution/prorogations involved the Queen Mother and Princess Margaret acting as Regents as the Queen was unavailable (possibly in New Zealand).
Well, if it was an Archbishop of Canterbury appointed after 1952 but before 1979, it was either Ramsey succeeding Fisher in 1961, or Coggan succeeding Ramsey in 1974. I’m not aware of a controversy about either appointment.
If it was York instead, then coincidentally it would be Ramsey or Coggan again (in 1956 and 1961 respectively) or perhaps Stuart Blanch in 1975. There was a suggestion that several others turned down the position before Blanch, including Runcie, but nothing approaching the situation you describe.
I agree with the general thrust of your point – which is that the queen has invariably (or almost invariably) done whatever duty required her to do, and in the main that means exercising prerogative powers as she is advised by the prime minister – but sorry I am not yet convinced that she did intervene on the three occasions you have identified, and then had powers curtailed or removed.
“Balmoral Castle
6th September, 1964
SECRET
My dear Mitchell,
Thank you for your letter of 4th September and for the draft press notice enclosed with it.
I have had a look at this in the light of what was said in 1959 and have no alteration to suggest. From The Queen’s point of view the important point on these occasions is that the Prime Minister asks for a dissolution rather than that he advises one because this makes clear the Royal Prerogative in such matters. This is brought out perfectly distinctly by the draft.
I see that in 1959 Mr Macmillan issued a further statement giving his reasons for asking The Queen to grant an early dissolution of Parliament; in this year’s circumstances there is, I imagine, no necessity for this.
Yours sincerely,
[Lt-Col The Rt Hon Sir] Michael Adeane [GCVO KCB]
[To] D.J. Mitchell, Esq. [Principal Private Secretary to the Prime Minister]”
— TNA, PREM 11/4756 image 46 https://discovery.nationalarchives.gov.uk/details/r/C2041582 via Ben Pimlott, “The Queen” (2001) 341 https://archive.org/details/queenelizabethii0000piml/page/341/mode/1up via Anne Twomey, “The Veiled Sceptre” (2018) 373
As of today (26 August), discussion about whether the new PM, whose identity is to be revealed on 5 September next, will request dissolution has subsided. Nevertheless, were the matter to go “live” again the economic ground for the Sovereign’s refusal to accede to the new PM’s request to dissolve (reason number 2 in the Lascelles’ letter) becomes persuasive, given the vast scale of the cost of living/energy price increase crisis.