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Between November 1688, when Prince William of Orange invaded England at the head of a Dutch army and February 1689, when William and his wife Princess Mary were offered the crown, England experienced a revolution of government, traditionally (yet invidiously) known as the ‘Glorious’ Revolution. ‘Revolution’, in this case, did not so much mean an armed uprising but rather the deposition of the supreme sovereign authority (King James II) by another part of the constitution – namely, Parliament. The ‘Convention Parliament’ effectively summoned itself into existence (subverting the need for a writ of summons from the King) and eventually offered the crown to William and Mary, thereby establishing the much-cherished principle of parliamentary sovereignty. The Convention Parliament was also responsible for the Bill of Rights, whose aim was to curtail the exercise of royal prerogative powers and prevent ‘arbitrary government’. James II, with the aim of establishing religious toleration, had used the ‘dispensing’ prerogative powers available to him to install Catholics and Protestant dissenters in public office – and, most controversially, to fill local corporations with his supporters in order to ensure the election of a Parliament favourable to his idea of religious toleration.
The Revolution of 1688, unlike the Revolution of 1642 (better known as the English Civil War), was achieved with comparatively little violence. James failed to show the resolve to face down William on Salisbury Plain and his army disbanded; there was no civil war on this occasion. But the constitutional revolution was no less complete, and its effects remain with us to this day – unlike the effects of the 1642 revolution, which were largely reversed by the Restoration of the Monarchy. It is a common misconception that the 1688 Revolution created a constitutional monarchy; this is only true in the sense that the Bill of Rights redefined the relationship between the monarch and Parliament, but of course the monarch’s powers had already been curtailed by Parliament before 1688 – hence James II needed to engineer the election of a Parliament sympathetic to his aims. Britain did not become a constitutional monarchy in the modern sense until 1714, when the Elector of Hanover was invited to replace Queen Anne and Parliament declared its absolute right to define who could succeed to the throne.
Combined with George’s decision to delegate powers previously vested in the king to his ‘Prime Minister’, Robert Walpole, the Georgian era inaugurated the exercise of most royal power by a minister of the Crown under the constitutional restrictions imposed by Parliament. By the twentieth century, it had become conventional for that minister of the Crown – the First Lord of the Treasury or Prime Minister – to be a member of the House of Commons and therefore elected. However, the delegation of royal prerogative powers to the Prime Minister did not mean that the royal prerogative disappeared – merely that the monarch was unable, in most cases, to exercise it him or herself.
The fact that very extensive prerogative powers still exist is something we are once more becoming aware of, as Theresa May seems intent to trigger Article 50 of the Lisbon Treaty by means of prerogative power and thereby begin the process of withdrawing Britain from the European Union. When Tony Blair used prerogative powers to deploy British troops in Iraq it was a national scandal and led to a change in the law (Parliament must now approve military action, previously reserved to the Crown), but Blair was within his constitutional rights at the time, and Theresa May seems to think she is within her rights now. The issue to be decided by the High Court on 13 October is whether an ‘advisory’ referendum is meant to advise Parliament or advise the government. However, the difficulty of maintaining the position that the people, via plebiscite, can directly advise the government is that it profoundly subverts parliamentary sovereignty. The deployment of troops is a serious matter; unlike Brexit, however, it does not alter the constitution of the country or deprive the entire population of the rights and privileges of EU citizenship.
The triggering of Article 50 by Theresa May is a blatant abuse of royal prerogative, and if she does so there is no guarantee that Parliament – or indeed even her own Conservative Party – supports her. This does not simply raise the question of whether Mrs May is behaving as she should – the politically controversial act of triggering Article 50 is beside the point, compared with the much more important constitutional question of whether the Prime Minister should still be in possession of the royal prerogative powers she currently has. Brexit is a constitutional crisis not only because it threatens to remove rights that many British citizens consider a birthright, but also because it exposes the failure of the United Kingdom to develop as a functional constitutional monarchy. It is profoundly ironic that Mrs May, who deployed the vocabulary of the 1688 Revolution by advocating a ‘British Bill of Rights’ whilst Home Secretary, is now forgetting the most important lesson of that Revolution: that abuse of the royal prerogative is arbitrary government and something unacceptable to the British people.
Perhaps most worryingly of all, English history shows that governments who disregard the sovereignty of Parliament open themselves to challenges that are not merely political but revolutionary – root and branch movements of rebellion that refuse to recognise the legitimacy of a government that denies Parliament a constitutional role. One need only consider the consequences of the personal rule of Charles I and the failure of James II’s toleration project. By setting Britain on a new constitutional course by no authority other than the royal prerogative, Theresa May is sailing the ship of state into very dangerous waters.