Memo to Boris …if in doubt, consult
Walter Bagehot – still the most quoted authority on the British constitution – summed up the monarch’s role with the words ‘the right to be consulted, the right to encourage, the right to warn’. No doubt the Queen will have been 100% diplomatic this week, and she would have faced a confident, determined Government with certainty in its soul and the wind of its honeymoon period in its sails!
But the decision to prorogue Parliament and prevent it meeting for almost five weeks provokes fury in many – but not all quarters. Some seasoned politicians call it an outrage; others claim it is merely the application of the long-standing practice of organising Parliamentary sessions around a traditional, if vague legislative cycle. Without doubt it is controversial, not least because the British constitution is ‘unwritten’ and so many of the rules or conventions are (deliberately?) imprecise.
Four years ago was the 800th anniversary of Magna Carta, and, totally invisible to most people, the Constitutional Affairs Committee of the Houses of Parliament organised a consultation – seeking views on whether we should have that elusive written constitution. In our book The Politics of Consultation, we describe the attempts made by the Committee Chairman, Graham Allen MP, to get some traction for this rather dry subject. He failed. No-one was interested. Their initiative sunk without trace.
Today, as Ministers, Media and even royal Advisers flounder in the uncertainty of current events, this now seems a pity. Where there is genuine confusion – and no-one knows who is right and who is wrong, those who are most adamant look most foolish. Honest scratching of heads can seem better than arrogance and bluster. Oh for a degree of consensus …!
This is why there is something to be said for a truly consultative approach whenever there is genuine uncertainty. I’m not quite sure; what do you think? may be better than “We are sure this is right, so we will proceed anyway.”
To conclude on today’s royal theme, we can recall that seven years ago – on 5th September 2012, the body of King Richard III was discovered in a car park in Leicester. What followed was one of the most fascinating legal battles in recent years as the Plantagenet Alliance (yes, really!) sought to persuade the High Court that Richard of York’s remains should be re-buried in York. They argued that given the unprecedented nature of the decision, the British public should have been consulted on the best way forward. Three of the country’s top Judges ruefully remarked that it might well have been ‘politic’ for there to have been some form of consultation – but sadly, the law did not require it.
As we speak, no-one knows if the Courts will be brave enough to intervene in the Prorogation decision, and the stage seems set for a battle of wills between those who approve of the Government’s actions and those who do not. But one of the hallmarks of a good consultation is that it requires everyone to focus on the impacts of what is proposed. Political actions such as this will have consequences – both good and bad. Some will be foreseen and some unforeseen. Having a structured public debate is an opportunity to consider the advantages and disadvantages both long-term and short-term, and can, on occasions make decision-makers pause for thought before hurtling onwards with their plans.
Clearly, in this instance, the Government has no interest in hesitation, but it might be nice to think that in performing her role to warn as well as to encourage, Her Majesty might have suggested that in future, it might be a good idea to consult some other stakeholders before bringing her such a hot potato!
 R (ex parte the Plantagenet Alliance) v Secretary of State for Justice , the University of Leicester and Leicester CC  EWHC 1662. This and other cases is discussed in the Institute’s Law of Consultation course