The Constitution Society is delighted to announce that our 2024 Undergraduate Essay Prize has been awarded to Alfie Arthur, a second year linguistics student at Trinity College, Cambridge. The Society is grateful to Hart Publishers for their support of the Prize and to our judges, Professors Aileen McHarg and Andrew Blick, Sir Richard Mottram and Baroness Laing. The winning essay is presented below.
Prerogatives, principles, and precarity: how the UK constitution is parliamentary, not presidential, in both name and nature
1. INTRODUCTION
In considering whether the UK’s constitution is a parliamentary system in theory but a presidential one in reality, we must first define the term ‘presidential’ in a constitutional sense.
Lijphart (2012) characterises a presidential constitutional system as having a “one-person executive”, with the cabinet serving as a team of advisers rather than equal partners. The president has the final say, and the cabinet remains loyal to the president. The legislature is elected independently of the president (with an emphasis on the categorical separation of legislative and executive powers) and cannot remove the president during their mandate under normal circumstances. Finally, per Babeck and Weber (2022), presidents also tend to have some hand in legislation, either through their right to sign or veto legislation or promulgate legislation of their own, such as executive orders or proclamations. This essay will primarily treat presidential systems in which the head of state is also the head of government, largely because when the UK’s prime minister is labelled ‘presidential’ in popular discourse, this is what people usually mean.
This essay will focus on the constitutional role of the prime minister in the UK in the context of the above criteria as well as the international examples of presidential systems, beginning with the constitutional powers afforded to the prime minister, followed by the constitutional constraints on those powers as they have been demonstrated by the UK’s judiciary, legislature, and executive. A brief discussion will ensue, which will also address why parliamentary systems are often mistakenly accused of being ‘presidential in all but name.’ Ultimately, this essay will argue that the UK’s constitution is parliamentary, not presidential, in both name and nature.
2. POWERS OF THE PRIME MINISTER
The most obvious place for drawing constitutional similarities between the prime minister and a president is the powers and privileges of the prime minister. However, where such similarities do exist, these reflect the constitutional necessity for governments and their leaders to have executive powers, which is far from unique to a presidential system.
2.1. THE ROYAL PREROGATIVE
Most of the prime minister’s executive power comes from the Royal Prerogative, which A.V. Dicey called ‘the remaining portion of the Crown’s original authority … the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the Queen or by her Ministers’ (Dicey, 1889, p. 353). (Since Dicey’s time, most of this power has passed to the executive.) Prerogative powers exercised by the prime minister nowadays include ‘advising’ the monarch to appoint and dismiss ministers, summoning, proroguing, and dissolving Parliament, and directing troops in armed conflict without the consent of Parliament.
This latter power is among the most contentious royal prerogative powers, as in the Suez Crisis in 1966, the Falklands War in 1982, and, more recently, the UK’s involvement in airstrikes in Syria in 2018. While the power of the prime minister to engage the UK’s military without the consent of Parliament may seem excessive, it is not unusual, and it is certainly not presidential. The prime minister’s ability to influence or order military action without parliamentary involvement exists in Australia, Canada, India, and Israel,(1) to name a few; the latter two have presidents as well as prime ministers, neutralising the idea that military engagement is strictly a presidential constitutional role.
Moreover, the prerogative powers afforded to the executive in the UK are necessary for the effective day-to-day functioning of the executive. Without the power to appoint and dismiss members of the cabinet, the prime minister could not run an effective and streamlined government, and without the power to engage the armed forces, the executive would be powerless to respond quickly to unexpected overseas threats when Parliament is not sitting. The clear pattern here is that prerogative powers of the kind seen in the UK are common to all executives, not just presidential ones.
2.2. UNPRESIDENTIAL POWER
The prime minister also bears certain powers beyond those borne by a president by virtue of the ‘fusion of powers’ which percolates through the UK’s constitution (Bagehot, 1867/2001) compared to the separation of powers emphasised in presidential systems. Dowding (2013) offers the prime minister’s legislative role as a key example of this.
In the UK, the prime minister and members of their cabinet can introduce legislation, whereas in systems where the executive and legislature are strictly separate, the executive’s hand in legislation is limited to negotiation. The prime minister can also vote on legislation; perhaps often negligible when considered as one of 646 voting MPs, but in principle a point of sharp distinction with a presidential system.
In short, this additional power of the prime minister to introduce and vote on legislation highlights a key divergence between the two systems: presidential systems favour separation between the executive and legislative branches, whereas parliamentary systems like the UK’s favour their fusion.
2.3. THE ABSENCE OF POWER
Finally, the absence of certain powers and privileges is notable when considering how the prime minister’s role differs constitutionally from that of a president. Recall that a key feature of a presidential system is the involvement of the president in legislation, either through the ability to promulgate their own legislation, or to veto or approve legislation which has passed the legislature. As one would expect, the prime minister has no such power in the UK.
In summary, a cogent division has emerged between the powers which would be expected of the head of government in a presidential system and the powers which the UK’s constitution affords to the prime minister. In the following sections, this essay will demonstrate that the division between the two systems holds when considering the constraints on the prime minister’s power.
3. CONSTRAINTS ON THE PRIME MINISTER
3.1. JUDICIAL CONSTRAINTS
Despite the absence of a codified constitution against which to systematically restrain the powers of the prime minister, UK case law on the power of the prime minister has, both historically and recently, emphasised the UK’s constitution as a parliamentary rather than presidential system.
It is impossible to discuss this without mentioning two interconnected landmark rulings, the first of which, Case of Proclamations (1610), laid two critical foundations of UK constitutional law. Firstly, that the monarch’s use of the royal prerogative was justiciable and not unlimited. Secondly, and critically for the purposes of this essay, that the monarch can only make and amend laws through Parliament.
The second, four hundred years later, was one of the UK’s highest-profile judicial interventions in a generation, R (Miller) v Prime Minister (2019; henceforth Miller II). The case found that the precedents of parliamentary sovereignty and justiciability of the Royal Prerogative established by the Case of Proclamations prevented the prime minister from proroguing Parliament in such a way that would frustrate legislative oversight of EU withdrawal negotiations. Some commentators(2) see this as heralding a new era of judicial overreach, but I argue otherwise. The Court’s judgment, painstaking and well-supported by precedent,(3) affirms a principle of the UK’s constitution which firmly sets it apart from a presidential system: the executive, judiciary, and legislature are not separate and equal; instead, the executive and judiciary defer to Parliament, and more specifically, to the House of Commons.
Miller II evokes the strictly parliamentary view of the UK constitution defended by the likes of A.V. Dicey and Vernon Bogdanor. The idea that courts are prepared to uphold parliamentary over executive sovereignty expands, from the judicial perspective, the present case for the UK’s constitution being parliamentary, not presidential, in nature.
3.2. LEGISLATIVE CONSTRAINTS
Furthermore, the nature of the prime minister’s relationship with Parliament is incompatible with a presidential system of government. Recall Lijphart’s criteria for the legislature in a presidential system: the legislature should be elected separately to the executive, should be strictly constitutionally independent from the executive, and cannot remove the president from office during their mandate in normal circumstances. The following section will demonstrate that none of these three criteria are met in the UK’s constitution.
First, the legislature and president should be elected separately in a presidential system. This is an important part of the checks and balances on the head of government in a presidential system; a president losing or failing to gain a majority in the legislature during their mandate can act as a serious impediment to their legislative agenda, a fate often befalling U.S. presidents in the middle of their terms.
On the contrary, in the UK’s constitutional system, the prime minister is also a fully-fledged Member of Parliament, and as such is subject to election at the same time as the rest of the House of Commons, giving the electorate limited power to impede the governing party’s legislative agenda during its mandate. This reflects certain precedents of the UK constitution which also put it at odds with the second criterion: the Peel convention, which stipulates that members of the cabinet must belong to one of the two Houses of Parliaments, and the more specific convention beginning with Arthur Balfour in 1902 that the prime minister be a member of the House of Commons. Again – this ‘fusion’ rather than ‘separation’ of legislative and executive powers is distinctly parliamentary, not presidential.
Finally, the legislature cannot remove the president from office during their mandate in normal circumstances,(4) either constitutionally or informally. In the UK, on the other hand, the power of the House of Commons to force out a prime minister is seen in both informal and formal mechanisms.
Informally, a well-suspected loss of party confidence from the Commons has led to the demise of prime ministers as recent as Liz Truss in 2022 (Cole and Heale, 2023).
This informal mechanism is rooted in the fact that Parliament does have a formal mechanism by which to oust a prime minister from office, known as a vote of no confidence, which requires only a simple majority to pass, making it relatively straightforward compared to impeachment in a presidential system (Tokatlı, 2024). The mere threat of losing a vote of no confidence was enough to prompt a prime-ministerial resignation in the above two cases.
The formal mechanism has also been used to oust prime ministers, as with Jim Callaghan’s removal in 1979. Parliament therefore has both soft and hard power to oust prime ministers during their mandate and regularly discharges this power; if the UK’s constitution were a presidential system in all but name, this would either not be possible, or would at least be much rarer than it is.
3.3. EXECUTIVE CONSTRAINTS
Finally, the relationship between the prime minister and cabinet arising from the circumstances outlined above is starkly unpresidential.
According to Lijphart, a presidential prime minister would act like a ‘one-person executive’ surrounded by a cabinet of loyal advisers. The fusion of powers in the UK constitution does not permit this, as the final days of Margaret Thatcher’s premiership reflect. Her increasingly autocratic style, particularly her refusal to compromise on contentious issues like the poll tax and EU integration, alienated key members of her cabinet, most prominently Geoffrey Howe, her long-serving deputy prime minister.
While the resulting threat of a successful leadership challenge was the immediate catalyst of her resignation, Jones (1995) described Thatcher’s recalcitrant cabinet as dealing the ‘mortal wound’ to her premiership. The events surrounding Thatcher’s resignation demonstrate the fatal consequences that actually behaving like a president can have for a prime minister in the UK.
More recently, a record sixty-two cabinet and other ministerial resignations in a period of just two days sounded the death knell for Boris Johnsons long-foredoomed premiership in July 2022 (Walker, 2023). Both events critically reflect the power of the cabinet to restrain the prime minister in a way it could not if the UK’s constitution were a presidential system in all but name.
4. DISCUSSION
This essay has made the case that the UK’s constitutional arrangements mean that the prime minister’s powers and the constraints on those powers are systemically different to those of the head of government in a presidential system. Given the principles of parliamentary democracy, I argue that it is virtually unthinkable that a parliamentary democracy such as the UK’s could ever be considered presidential in nature.
For example, because the executive and legislature will always be integrated, the prime minister can very seldom act in contrary to the will of their cabinet – or even less, their party – without seriously risking immediately losing the confidence of the legislature. On the other hand, a president could, in theory, change their entire cabinet and policy programme at the beginning of their mandate, and only fear the repercussions towards the end, which could be years in the future.
What emerges – and what I have attempted to demonstrate throughout this essay – is that the core principles of parliamentary and presidential constitutions are incompatible with one another.
Why, then, is ‘presidential’ one of the most popular slurs against the prime minister? The answer may lie in the fact that it surfaces most often when the prime minister is thought to have overstepped their constitutional power. ‘Presidential’ has therefore been co-opted as a synonym for ‘overpowerful.’
In reality, while the prime minister does wield significant power, executive power in the UK is of a fundamentally different nature to the power of a president. It is more precarious, more distributed, and much more reliant on the confidence of both the whole executive and the legislature. Any attempt to characterise the UK’s prime minister as ‘presidential’ without considering these factors will invariably mislead.
5. CONCLUSION
In conclusion, the notion that the UK’s constitution represents a parliamentary system in theory but a presidential system in reality has been refuted from multiple perspectives in this essay. Firstly, how similarities between the executive powers of the UK’s prime minister and a president do not implicitly mean that the UK has a presidential system. Secondly, how the judicial, legislative, and executive constraints on the prime minister’s power are fundamentally at odds with what one would expect if the UK’s constitution were presidential in nature. Finally, a discussion affirmed this essay’s stance that the idea that the UK has a covertly presidential system is misleading, and any attempt to advance this view will always misrepresent the core principles of parliamentary and presidential systems of government.
AUTHOR
Alfie Arthur is from Stroud, Gloucestershire. He is in his second year studying linguistics at Trinity College, Cambridge. He maintains a strong interest in UK politics and constitutional affairs and has long been fascinated by the UK constitution.
REFERENCE LIST
Australian Constitution. (1900). Chapter II, sections 61, 62, and 68.
Babeck, W., & Weber, A. (2022). Presidential Powers and Veto Rights. In W. Babeck & A. Weber, Writing Constitutions (pp. 223–253). Springer International Publishing. https://doi.org/10.1007/978-3-030-94602-9_8
Bagehot, W. (1867). The English constitution (2nd ed.). Oxford University Press.
Basic Laws of Israel. (1976). Basic Law: The Military.
Case of Proclamations [1610] EWHC KB J22 (Eng.).
Cole, H., & Heale, J. (2023). Out of the blue: The inside story of the unexpected rise and rapid fall of Liz Truss. HarperCollins.
Constitution of India. (1950). Art. 352.
Dicey, A. V. (1889). Introduction to the Study of the Law of the Constitution (4th ed.). Macmillan and Co.
Dowding, K. (2013). The Prime Ministerialisation of the British Prime Minister. Parliamentary Affairs, 66(3), 617–635. https://doi.org/10.1093/pa/gss007
Elliott, M. (2019). A New Approach to Constitutional Adjudication? Miller II in the Supreme Court. Public Law for Everyone. https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach-to-constitutional-adjudication/
Government of Canada. (2015). The specific case of the Crown prerogative power to deploy the CF on military operations of Canada. Retrieved from https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law/crown-prerogative/the-specific-case-of-the-crown-prerogative-power-to-deploy-the-cf-on-military-operations-of-canada.html
Hansard. (24 July 2024). HC Deb 752(664).
Jones, G. W. (1995). The Downfall of Margaret Thatcher. In R. A. W. Rhodes & P. Dunleavy (Eds.), Prime Minister, Cabinet and Core Executive (pp. 87–107). Macmillan Education UK. https://doi.org/10.1007/978-1-349-24141-5_5
Lijphart, A. (2012). Patterns of democracy: Government forms and performance in thirty-six countries (2nd ed). Yale University Press.
Martin Loughlin. (2019). The Case of Prorogation: The UK Constitutional Council’s ruling on appeal from the judgment of the Supreme Court. Policy Exchange.
McHarg, A. (2020). The Supreme Court’s Prorogation Judgment: Guardian of the Constitution or Architect of the Constitution? Edinburgh Law Review, 24(1), 88–95. https://doi.org/10.3366/elr.2020.0603
Neuberger, D. (2014). The British and Europe. https://publiclawforeveryone.com/2014/02/13/is-lord-neuberger-right-to-suggest-that-the-uk-has-no-constitution/
R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland (Supreme Court of the United Kingdom UKSC 41 2019).
Tokatlı, M. (2024). Impeachment as Last Resort to Safeguard Democracy? Removing the Head of Government in Different Institutional Settings. Politische Vierteljahresschrift, 65(2), 395–415. https://doi.org/10.1007/s11615-023-00488-w
Waldron, J. (2006). Are Constitutional Norms Legal Norms? Fordham Law Review, 75(3), 1377–1413.
Walker, R. (2023). Boris Johnson: The moral case for government resignations in July 2022. British Politics, 18(1), 60–80. https://doi.org/10.1057/s41293-022-00221-y
OTHER WORKS CONSULTED
Barendt, E. (1997). Is There a United Kingdom Constitution? Oxford Journal of Legal Studies, 17(1), 137–146.
Craig, P. P. (2019). The Supreme Court, Prorogation and Constitutional Principle. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.3477487
Goldsworthy, J. (2010). Parliamentary Sovereignty: Contemporary Debates (1st ed.). Cambridge University Press. https://doi.org/10.1017/CBO9780511781490
Ieraci, G. (2021). Power in office: Presidents, governments, and parliaments in the institutional design of contemporary democracies. Constitutional Political Economy, 32(4), 413–430. https://doi.org/10.1007/s10602-020-09318-2
(1) Sources, from left to right: Australian Constitution (1900); Basic Laws of Israel (1976); Constitution of India (1950); Government of Canada (2015).
(2) See Elliott (2019) and McHarg (2020) for largely impartial reviews of this point of view, or Loughlin (2019) for an opinionated manifestation of this view.
(3) Craig (2019) sets out a compelling case for this.
(4) Abnormal circumstances include, for example, impeachment for high crimes and demeanours or the threat thereof, which famously led to U.S. president Richard Nixon’s premature resignation in 1974.