OPTIONS PAPER: HEAD OF STATE

Over the last thousand years or so the monarchy – as head of state – has represented an evolved and evolving institution. The question we face today is: what is the best structure for the country of the future?

The Commission on Political Power was established to look at how our democratic systems are functioning and to formulate ideas for how we could develop. The Commission is building on academic and policy work by a wide range of experts and organisations.

It is clear that the head of state is imminently going to go through a period of change and it is our contention that the country should not slide unthinkingly into that transition, but should consider what choices are realistically available and what the implications are for each of them.

This options paper sets out, briefly, several scenarios for discussion and consultation, on the role of the head of state within the UK’s constitution and Parliamentary democracy.

The central issue it seeks to investigate is the ‘grey’ area in Britain’s political settlement when it comes to the role of the head of state. In other political systems, the role of the head of state comes with clearly-defined powers which are exercised explicitly to act as a check on the executive. This is not the case in the UK.

In the UK, the role of the head of state is occupied by an hereditary monarch premised on the principle of primogeniture. Theoretically, the head of state possesses a number of prerogative powers which act as a check on the executive branch of our political system – specifically the prime minister who heads an elected government. Practically, however, these royal prerogative powers are not used – which leaves a vacuum on any constriction of executive power.

Under the reign of the UK’s current head of state, Queen Elizabeth II, a constitutional principle has been established that these powers will not be used – not least because, as an hereditary position, there is no inherent elected legitimacy associated with the role. As such, if the UK’s current – or any future – monarch did choose to exercise these hard powers, or soft influence, a constitutional crisis of sorts may be triggered. There is thus no check on the executive from the head of state.

Added to this, in the UK’s Parliamentary system, the legislative branch is not able to serve as a truly independent check against an overreaching executive either since, by definition, the executive’s very existence is contingent on it commanding a majority in the legislature – Parliament. Nor is there an option such as exists in many other democracies for the UK’s judicial branch to fulfil that function through means of a constitutional court, as the UK does not have a formal written constitution and rather relies heavily on certain unwritten conventions and norms which have evolved over time. The tradition that Parliament is sovereign means that it can also overturn any ruling from the courts that it dislikes by passing new laws.

The non-exercise of the head of state’s prerogative powers, combined with the lack of sufficient checks and balances from other institutions, therefore means that there is a gap when it comes to having a check on the executive in the British political system.

The existence of a monarchy in the UK also creates the notion of residents in the United Kingdom being described as ‘subjects’ rather than as ‘citizens’; arguably an outmoded concept in the 21st Century. The tradition of inherited titles cascades through into other elements of British democracy – such as the House of Lords, which still retains a number of members who have acquired their position through inheritance.

It is important to stress that any review of the current system of constitutional monarchy cannot be divorced from consideration of the other aspects of the UK’s democracy. It is how the various parts of the British system work together which needs to be assessed to establish whether they add up to a coherent, democratic whole.

Bearing these considerations in mind, there are various options to consider when it comes to the specific role of the head of state.

OPTION 1

The UK could maintain its current system of constitutional monarchy with no change to the monarch as its head of state.

Prerogative powers – which in theory provide a check on the executive but are, by convention, not exercised – would remain with the monarch. For example, it is in the gift of the prime minister to prorogue Parliament but it is done in the name of the Queen. When the prime minister unlawfully prorogued Parliament in 2019, the monarch did not provide any bulwark against his decision.

This means that there would continue to be a gap in the check on the executive, unless other institutions were introduced or reformed to provide that function. It also means that there is a lack of clarity around the role of the monarch as head of state.

The problems – unclarified in nature – with this system are particularly liable to be exposed if an over-powerful prime minister seeks to push the boundaries of the UK’s political system. A new monarch might also be keen to exercise more influence and this might not be as visible as it should be.

OPTION 2

The UK could grant the monarch more formal powers to act as a check on the executive, for example by being able to to question the actions of a prime minister or raise concerns with Parliament over any legislation that they consider exceeds constitutional norms or boundaries.

The obvious problem with this option is that the monarch has no inherent elected political legitimacy, and any such action would be strongly contested by Parliament and much of the public. Moreover, the monarch could abuse such powers to advance their own or their friends’ personal, financial or other interests.

OPTION 3

The UK could move away from having a constitutional monarchy towards a purely ceremonial head of state.

The prerogative powers – currently held by the head of state and which can act as a check on the executive but are not, by convention, exercised – would be transferred to an independent body, such as a constitutional court or Parliamentary committee, which would explicitly have the power to act as a check on the executive. For example, other countries have a court, in addition to a supreme court, the function of which is solely to protect the constitution.

An alternative scenario could see a Parliamentary cross-party committee taking on these responsibilities which could be sitting during and after an election to provide continuity.

Under this option the investiture of the prime minister would be conducted by Parliament instead of the monarch. The speech setting out the government’s programme of legislation would be read by the prime minister, thus making it clear that it is a political direction.

There are questions as to the monarch’s role as head of the church (a settlement emanating from Henry VIII’s time), the appointment of ambassadors and receiving other heads of state.

This option appears to represent the smoothest continuation of the diminution of the state of the sovereign which has taken place over the past few centuries and clarifies where power lies.

OPTION 4

The UK’s constitutional monarchy could become a purely ceremonial monarchy, with the monarch’s prerogative powers transferred to an elected head of state with the mandate to use their powers to act as a check on the executive.

This option would retain the monarch and create a new role for a president, alongside that of a prime minister.

While the monarchy would still exist and fulfil a purely ceremonial role, consideration would need to be given to the monarchy’s inherited wealth including property and their remaining functions within the political system.

The UK’s constitutional history has never included a role for an elected head of state such as a president. As such, the relationship between a president and Parliament, with a prime minister as the head of an elected government, would need to be carefully considered. The president’s powers would also need to be clearly defined, to distinguish between their role and that of the monarch.

Risks could include constitutional deadlock, if the president and prime minister represented different political parties or agendas; or even worse executive overreach, if the president failed to uphold constitutional standards.

OPTION 5

The UK’s constitutional monarchy could become a purely ceremonial monarchy but with increased accountability to/engagement with the public about its stated role.

Royal titles and ceremonial duties might also only be granted to immediate family members of the monarch, in a more pared-down fashion. The public would thus be clear about which areas of public life it would attend to and which it would not; which causes members of the monarchy would dedicate themselves to and why; and questions around the monarchy’s inherited wealth.

For example, given that the Royal Family has involved itself in various charities, companies and causes, these should be chosen not by the royal Household but by Parliament or a public vote.

This option would retain the monarchy in a purely ceremonial role, but acknowledge that the system of deference and inheritance on which it is predicated may no longer be in keeping with social and political developments in a 21st Century democracy and in terms of public opinion – particularly the views of younger generations.

OPTION 6

The UK could abolish the monarchy – stripping it of its constitutional role and any potential purely ceremonial role – and become a republic, with an elected head of state (such as a president) with the mandate to use their powers to act explicitly as a check on the power of the executive.

The relationship to the prime minister would have to change, and we would have to look to countries like France which have both roles as it would require a significant restructuring.

The UK’s constitutional history has never included a role for an elected head of state such as a president. The relationship between a president and Britain’s Parliamentary system, with a prime minister as the head of an elected government, would need to be carefully considered.

Under this option, the significance – or not – of the role of the monarchy to the UK’s national identity and its social cohesion, as well as its position abroad, would also need to be considered.

2022