It depends what you mean by “must”. I think it is only a convention that she must accept the advice of the Cabinet and, like all conventions, it could be overridden in extreme circumstances. It’s certainly not true of certain things, such as the grant of honours.
It’s not entirely true that she has “Hobson’s choice” in whom to appoint as Prime Minister: how did Sir Alec Douglas-Home become PM? It’s pretty clear that in that situation the Queen enjoyed a great deal of discretion over whether to appoint him or not since he wasn’t the leader of the majority party in the House of Commons, or any party in the House of Commons, or in the House of Commons at all. She could quite properly insisted on waiting for the outcoms of a Tory leadership contest, but she didn’t. Likewise, the Thatcher coup and John Major’s resignation as PM both created situations in which the Queen, potentially could have been called in to arbitrate about who took the office of Prime Minister.
The right to refuse Royal Assent was last exercised by Queen Anne in 1707-08.
Tom: Your points are quite valid, or were in one case. There are, however, reasons for what I said, as follows. Thanks, incidentally, for dating Queen Anne’s last withholding of the Royal Assent (AKA “veto”).
According to Majesty, which always struck me as perhaps the most balanced book on Elizabeth II, she was taught when she was prepared as a child for eventually becoming queen that she is obliged to accept the advice of her government. I’d draw a distinction between “what the P.M. thinks should be done” – which she is free to do or not do, if within her powers, as in the example you suggest of bestowing honors – and formally tendered recommendations from the Cabinet.
And while Sir Alec does furnish an exception, it’s one that “proves the rule” (see Cecil’s column on that phrase): Sir Alec was the last P.M. chosen under the “emergence” doctrine for picking Tory leaders. The Labour (and Liberal) parties were already electing their leaders, who would become P.M. if they got a majority (in the case of the Liberals, shortly after Hell froze over). As a result of the controversy over Sir Alec’s appointment and how she arrived at the decision, the Conservative party now elects its leaders as do the other parties. So her only choice is in how to tailor a coalition if it’s a no-majority situation, and generally the leaders will have horse-traded enough that she’ll be presented with a coalition that has a majority and an agreed P.M. candidate for her to name even in that case.
I don’t mean to be facetious, but I was taught always to cover my mouth when I yawned, but I’m not compelled to do it. I accept that there is a great deal of moral and political force in the argument that the Monarch should take the advice of the Cabinet, but not that she is compelled to do so.
So would I, but the distinction is only as good as the docrtrine of collective responsibility. If that were to break down, as it might do conceivably do under certain circumstances, the Queen might be called on to make a political judgement about the merits of a particular proposal.
And in the case of Home, she didn’t wait for him to “emerge” as Tory leader, she appointed him solely on the advice of Macmillan. She effectively allowed Macmillan to hand the Tory leadership to Home on a plate when the normal course of events might have led to a different leader emerging (e.g. Heath) and a different election result in 1964.
It makes more sense to argue that, for most practical purposes, the Queen is bound to accept the advice of her ministers. This may be mere convention but it also reflects administrative reality - just about any political order which is issued in her name requires the cooperation of ministers to implement it. Conversely, her refusal to accept the advice of ministers would be countered with threats of resignation. Pace TomH, she is not obliged to accept ministerial advice, but she can probably be compelled to do so. What really matters is that it is always in the Queen’s interest to avoid constitutional crises, rather than to provoke them.
It is far too simplistic to say that the Queen relied solely on Macmillian’s advice when she appointed Lord Home as his successor. Soundings were taken among the grandees of the parliamentary Conservative party and the views of each individual member of the Cabinet were sought. In the absence of a formal process of election for a new Tory leader, it is difficult to see what else she could have done. Whether in doing so she placed too much weight on Macmillian’s advice can only be a matter of opinion.
I agree that there was not a lot else that the Queen could have done in appointing a succesor to Macmillan (or Churchill in 1955 or Eden), and I am not suggesting that she should have acted differently. What I am suggesting is that, on each of these occasions, she was not following a predetermined constitutional rule but exercising her own discretion. The fact that she exercised it in a more or less sensible way is neither here nor there.
The only reason it is now unlikely (though not impossible)that she will have to exercise her discretion in that way again is that the Tory party has adopted a settled process for electing a leader. And the principal reason why they did that was disquiet of over the way in which Home had become PM.
This is literally true, but only because of the inclusion of the words “for most practical purposes”, which tend also to reduce its force. Like most things about the Constitution, it’s straightforward when it’s straightforward but highly unpredicatable when it’s not. It might be in her interests to avoid constitutional crises, but what happens when they arise unbidden? What if:
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the Cabinet fails to request a dissolution within the five-year limit;
an incumbent PM requests a second dissolution imediately after a general election defeat, rather than resigning;
the PM requests a dissolution when it is clear that an alternative government could enjoy the support of the House without a general election; or
the PM requests a dissolution at a time of imminent national danger (as Chamberlain might have done in 1940)?
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If she is bound to accept the advice of her ministers then why would she not automatically grant a dissolution in each of those cases (or, in the first case, fail to dissolve Parliament)? [My feeling is that in the case of 1, she should dismiss the Government; 2 she should reject the PM’s advice and 3 and 4 are pretty much undetermined and would depend on the exact circumstances and on her discretion]
Finally, the argument that she must follow the advice of her ministers ignores the extent to which she might be able to influence that advice. It’s often alleged, for example, that Mrs Thatcher–who was elected and re-elected on a privatisation platform–never sought to privatise the Post Office because she thought the Queen would disapprove.
We’re now arguing about semantics. As I said way back, ‘The only substantial political powers the Queen retains are those which can be exercised when the political process fails to provide her with a clear source of ministerial advice’. The difficult cases only arise when it is unclear who her ministers ought to be. Even in those cases, the pressure would be on the politicians to sort the problem out among themselves.
As it is, each of your four difficult cases has a simple answer.
This is covered by the relevant statutes. Parliament under those circumstances is dissolved automatically.
Technically this would involve her ignoring the advice of her PM, but the unofficial conventions she would follow command wide agreement. The simple answer is that she dismisses the PM and asks the new majority leader in the Commons to form a government. The only reason why she would not have dismissed him/her immediately is that the PM can argue that he/she wishes to wait until the new Parliament meets. If there is a hung Parliament and the existing PM requests a dissolution, she asks the Leader of the Opposition to form a government. (There is a doubt about requests for dissolutions sought early in the lifetime of a new Parliament, but the presumption has now to be that such dissolutions would be granted.)
She grants a dissolution. (There is no reason why the PM must be the person who enjoys optimum support in the Commons, only that he/she should have a majority. If he/she doesn’t, he/she would be easily removed.)
Ditto.
In cases 3 and (more particularly) 4 she might try to dissuade the PM, but she would almost certainly follow the maxim, ‘If in doubt, dissolve’. This might well be controversial, but, by following ministerial advice to the letter, the calculation would be that the PM who would be the person held responsible for the decision. Asking the people to decide is always the easiest way out.
As you say, the precise circumstances of the Home succession won’t recur and are now rather academic. It is however worth pointing out that the existence of formal leadership elections need not prevent doubts over prime ministerial successions. The loser in a leadership election might be able to construct a majority with support from other parties. Moreover, all three major parties now have election processes in which their full membership can be decisive to the outcome. It is therefore always possible that the membership of the largest party might elect someone who does not command the support of most of its MPs, let alone a majority of the whole House. (One is tempted to call this the Widdicombe scenario.)
What I was trying to get at in point 3 was the Thatcher scenario suggested by Peter Hennessy: it is questionable whether she should grant a dissolution purely to stave off a leadership challenge within the governing party. I don’t have the book with me, but IIRC it’s not clear from Hennessy’s wording whether he is alleging that this actually happened or whether he is floating it as a hypothetical. Likewise, I’m not sure that she should necessarily grant a dissolution in scenario 4 if a national government can be formed.
And I like “the Widdecombe scenario”. I never understood why she became so popular after the “something of the night” speech and the Derek Lewis affair. If that was the way she felt, she should have resigned at the time.
An attempt to seek a dissolution to prevent an internal leadership challenge would undoubtedly be controversial. Whatever the Queen did would give rise to accusations that she had been partisan. My impression is that the speculation that Thatcher and later Major were thinking of doing so was loose talk by their supporters to frighten the rebels.
My own view is that the Queen would be more reluctant now to use her powers against an incumbant PM than she would have been even 30 years ago. The reason for this is simple and, in a sense, brings this thread full circle, namely, the Whitlam dismissal of 1975. The example of Sir John Kerr is one which she is unlikely to wish to emulate.
