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The Prerogatives of the Crown


“A sovereign must constantly heed the will of his people and at the same time care for the poor and humble; he is the servant of the law, and the mainstay of social peace and security.”

— King Albert I of the Belgians

The Royal Prerogative is the powers of decree that the British monarch may use without consent of Parliament. They are wide ranging and used frequently.

This is, of course, in theory. In practice, the Royal Prerogative is exercised only on the advice of the Government, which is held to account to Parliament for the advice it gives to the monarch. The following will describe the established prerogative powers and I will attempt to explain why they are held by the Crown. I’ll start with the easiest ones first.

The monarch issues passports, creates royal charters, mints coinage, authorises the mining of precious metals, is the State guardian of orphans, awards the allocation of treasure, bestows copyrights and franchises, and other similar functions. The monarch also has the power of Mercy (pardoning of criminals), can requisition ships for State use, can prohibit aliens from leaving UK territory, and can permit hearings before the Judicial Committee of the Privy Council.

Officially, these are done by the monarch without consent of Parliament. This is, however, only half the story. The Queen, in order keep her job, only exercises these prerogatives on the advice of her ministers. For example, the prerogatives relating to passports, Mercy, and restraining aliens are exercised on the advice of the Home Secretary (Britain’s Minister of the Interior), and decisions regarding the Judicial Committee would be under the remit of the Lord Chancellor. The Home Secretary, being an MP in the House of Commons, is accountable to Parliament – Parliament can express displeasure at the advice the Home Secretary gave the Queen and censure him as it sees fit.

The monarch grants Royal Assent to Bills before Parliament. Withholding Assent is essentially a legislative veto.

Theoretically powerful, this hasn’t actually been used in over three hundred years and is principally a formality. The last time was by Queen Anne in 1708, against the Scottish Militia Bill. It is highly unlikely the monarch would ever find cause to reactivate this prerogative, unless the government sought to pass a bill which would attack the democratic core of the constitution.

The monarch signs treaties, declares a state of emergency, and declares war and peace.

Again, half the story. Since the 1920s the Ponsonby Rule has meant that Parliament has seen all treaties before they are signed. It is utterly inconceivable that the monarch could exercise these particular prerogatives if Parliament were to object to them. As before, she can only use them on ministerial advice, who are subject to Parliament. One of the last acts of the Brown Ministry was to transform the Ponsonby Rule from a convention to an explicit legal requirement, and gives Parliament the express right to vote down treaties. This is a welcome development.

On war and peace powers, again, the monarch cannot use them without the government’s advice. And in turn, no government would dare go ahead with a military campaign in the face of Parliamentary opposition. Parliament’s absolute power here is obvious, even if it isn’t formally written. In 2003, Parliament debates and voted on whether British forces should participate in the invasion of Iraq. The House of Commons took a vote and narrowly approved the action.

Imagine that the vote had gone the other way. In theory, the government could have advised the Queen to declare war anyway, but in reality the most likely outcome if they had tried it would have been a successful no-confidence motion against the government.

The monarch appoints ministers, judges, peers, bishops and Archbishops of the Church of England.

The monarch only appoints them on the advice of her ministers. To do otherwise would have the government resign and the Queen unable to raise an alternative one from the House of Commons. Again, the government is accountable to Parliament and so must ensure it doesn’t take it for granted.

The monarch creates and confers knighthoods and other honours.

Honours are a mixture – the lower degrees of the orders of knighthood tend to be dispensed on the advice of the government, as a means of honouring people who do service for the country (and the breadth of fields honoured is, well, broad). The higher degrees however, including the most elite Orders – such as the Garter, Thistle and the Bath – are purely in the gift of the monarch without input from the government.

The monarch is Commander-in-Chief of the Armed Forces of the Crown.

This is chiefly a symbolic function, the deployment of troops decided by the government, but the Queen is known to take a deep personal interest in the welfare of servicemen and meets regularly with senior commanding officers. The servicemen in the Armed Forces all pledge allegiance to the monarch – not the government. A great many British servicemen take pride in this distinction and their direct connection to the Crown is taken seriously as a symbol of the Forces’ non-intervention in politics.

The monarch legislates by Order in Council/letters patent.

The refers to legislative decrees carried out by the Privy Council. Again, while in theory the Privy Council’s actions are not subject to Parliament, in reality the government’s control of the Council ensures that Parliament in turn holds its actions responsible.

The monarch summons, prorogues, and dissolves Parliament, and appoints the Prime Minister.

Here the importance of the monarch as impartial constitutional umpire starts to become more apparent.

In many ways the two-party system of the past 70 years has made the need for such impartiality less clear by limiting the need for royal oversight.  But in the periods of multi-party tension the British monarch has often played a key role.  Queen Victoria and George V sought to bring the parties together to discuss Irish Home Rule; Victoria again sought to bridge the divides over Irish disestablishment in 1869 and in 1884 over the Reform Act.

Ironically, reform of the electoral system in Westminster could see a resurgence in the monarch’s role.  We can look to examples in Europe for the key role monarchies in Denmark, the Netherlands and Belgium have in facilitating cross-party agreement.

For example, the Queen rarely refuses a dissolution of Parliament because the government, comprised of one party, governs alone.  Refusing a dissolution would handicap the Queen’s government as the Opposition would not have sufficient seats in the Commons to sustain themselves.  Opposition to a dissolution here would be lunacy.

Right now of course, Britain is experiencing its first peacetime coalition government since the 1930s.  The negotiations between the Conservative and Liberal Democrat negotiating teams in May 2010 were carried out by and large without the monarch’s involvement.

There’s a lot of what-ifs about the coalition, though.  What if the talks had collapsed, and Cameron was installed a PM of a minority government?  What if Brown had refused to quit Downing Street?  Theoretically, he could have asked the Queen for another dissolution immediately, but the Queen would have been duty-bound to refuse it even if Brown had even thought about it.  The fact that the Queen has not had cause to use her Prerogatives much isn’t a sign that they’re defunct, but that Government and Opposition have tended to act constitutionally.

There are older examples and other theoretical cases the monarch would be crucial in deciding.  For example, if the PM were to lose the support of their party or cabinet, then the PM would not be automatically granted a dissolution.  An election requires political camps to close ranks in order to pursue votes; calling an election would in effect be used by the PM as a means of stifling parliamentary accountability.  For example, Harold Wilson threatened to call an election in 1969 over highly controversial trade union reform, and Major did the same over rebels in his party opposed to the Maastricht Treaty.  In 1990, having performed less than expected in her party’s leadership election, Thatcher considered going on to the second round and calling a General Election if she lost.  The Queen would have had no choice but to disappoint her.

Sources:

Bogdanor, V (1997) The Monarchy and the Constitution, Oxford University Press

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The Role of the British Monarchy

June 25, 2010 2 comments

“Parliamentary monarchy fulfils a role which an elected president never can. It formally limits the politicians’ thirst for power because with it the supreme office of the state is occupied once and for all.”

— Max Weber

The monarchy is most visibly a ceremonial, representative office, but the monarch carries out real day-to-day duties too. Above all, the monarch is meant to show impartiality in all she does, not only for symbolic purposes but also to ensure she can carry out her constitutional duties to the contentment of all political actors.

To borrow some of Walter Bagehot’s terminology, the British constitution is divided into ‘dignified’ and ‘efficient’ elements.  The efficient side makes and enforces the decisions that affect the lives of the governed, that is, the Commons and the Executive.  The dignified side expresses national identity and imparts the symbols of authority onto the efficient side.  This can be enormously beneficial to, say, a reforming, radical government, as to cloak itself in the dignified element can help to reconcile some to its aims and to render legitimacy to its policies.

It would not be appropriate for the monarch to get involved in the ‘efficient’ element as it would not be tolerated and fly in the face of democratic principles. The monarch would cease to represent the country and start to be associated only with those whose interests it would start to promote.

The monarchy is at the heart of British identity, and it’s difficult to imagine what could ever replace it (there’s an ongoing debate in the UK right now about what ‘Britishness’ is, and thus far nobody can come up with anything much beyond the monarchy and woolly ideas about freedoms and so on).

So in the absence of anything like a revolution or a war of independence to act as Britain’s symbol and narrative, the monarch, a person, is that symbol.  This brings some distinct advantages.  A concept as a symbol can be misinterpreted or misunderstood, or disagreed with.  A person is a concrete fact.  Also, by making the ‘efficient’ element constitutionally subordinate to this symbol and making all its actions done in the name of the monarch, it serves to humanise power.

In the absence of a major historical, nation-forming event, Britain’s symbol is a person. This carries with it some distinct advantages. It’s much easier to have allegiance to a person than a concept. It also humanises power by stressing that political power is subordinate to the national symbol, and all government actions are done in that symbol’s name.

Electing the Head of State would not change the role much from what the monarch does already (assuming Britain would remain a parliamentary state, not presidential), and those who complain about the dinners, receptions, visits and openings that the monarch has to attend fail to explain what a President would do differently.

“Monarchy is often criticised for being a lottery, but so is an elected presidency. Britain last had to play the regal lottery in 1952, when it won handsomely. It has not had to gamble again since then. In the past 45 years Ireland has had to vote in seven presidents, few of them memorable, most of them just grazing.”

— William Shawcross

To claim that it’s a ‘democratic’ right of the people to elect their Head of State ignores two things.  Firstly, presidential candidates would require huge resources to sustain a winning campaign, implying either great personal wealth (and hence, I would argue, not being of the type of ‘people’ that most republicans want to see as president) or being dependent upon political parties for their success.  Secondly, it ignores the fact that almost all parliamentary republics do not elect their presidents directly – their parliaments choose them.  The people have no direct involvement.

If we elected the Head of State, by and large, the winning candidate would represent a political party.  Even if they renounce party labels upon winning office, like the German Bundespräsident does, their past records as private citizens and as politicians cannot be rubbed out, and there will always be question marks about their impartiality.  The Queen, however, has no political history, and there is only the vaguest idea of what her political views are.

Inheritance also has an advantage in endowing upon the monarch a high degree of experience; serving for life, the Queen has seen many situations, met many people, encountered many similar problems and predicaments. Being the heir, the Prince of Wales has been the Queen’s understudy for many decades and is the most qualified to jump in and continue the role effectively upon the Demise of the Crown; and of course Prince William is ready to take his place when the time comes. A President, however, will be elected out of the blue and will be highly unlikely to have much experience of the role, regardless of the other positive qualities they may have. This will repeat itself every few years, just as the incumbent is getting to grips with the role; and some may use the time to focus on re-election than providing a service to the public.

This benefit extends to the Queen’s heirs – the Prince of Wales can be accused of ‘getting involved’ in some issues, but even the examples that can be found relate to the broadest of broad policy issues. Moreover, when he becomes King, he will be constitutionally bound to clamp up even further. He has also been heir to the Throne for over 60 years and is kept well involved with ministerial activities. When he becomes King, he’ll require little time to get to grips with it.

Over at The Lure, another WordPress Blog I stumbled upon, the poster has summed up better than I could why monarchy works out better as Head of State:

“First, in an hereditary monarchy, it is easy to train princes, from birth, to be kings. If the training is at all competent, they acquire both the habits of statesmanship and the requisite propositional knowledge to rule wisely. Maybe the training won’t be competent. But, in a representative system, no one even makes a serious attempt at such training. We are governed by amateurs.

The fact that kings are trained – even competently trained – to rule wisely doesn’t mean that they will do so. They might have all sorts of incentives to pursue policies detrimental to their subjects. Maybe. But (a) they aren’t as beholden to the people as representatives (and so needn’t succumb to rash popular pressures), (b) there is more of an opportunity to (from birth) inculcate in them a sense of civic duty and (c) they are materially secure. The second potential advantage of a hereditary monarchy, then, is that it is easier both to normalize an hereditary monarch into caring primarily about the good of his country, and to remove the main incentives – money and power – to govern poorly. (On the other hand, it is more difficult to counter another incentive – to be an historical figure of note – which might e.g. incline monarchs towards militarism.)

In short, it’s arguable that a monarch is more likely both to have the capacity to be a better ruler than a representative and to realize that capacity. So the two “potentially big advantages” monarchism has over representative systems imply that, potentially, monarchies are much better at promoting societal flourishing than their representative counterparts.”

As we all know, politicians spend half of their political life fighting for election, and then the other half of it fighting for re-election. They disparage the record of the predecessors and focus on putting their successors in impossible situations with scorched earth tactics. Admittedly I am being a bit cruel here. Politicians have their rightful place as supreme lawmakers in Parliament and representatives of the people, but their presence in the position of Head of State isn’t inherently desirable.

This is particularly imperative when we consider the actual powers normally conferred upon a Head of State. The function of the Head of State in a parliamentary state is to act as the final arbiter of constitutional questions in the last resort.  In order to best serve democratic principles and to ensure the broadest possible consensus in what the constitution says and does, the Head of State is and ought to be held at one remove from the hustle and bustle of party politics.  The monarchy is best placed to execute this role in Britain, not least for the Queen’s longevity on the Throne, but also because if she calls it wrong she could be without a job very quickly.  The risk with a president is that they will make a political decision to benefit their party, knowing that they cannot be removed from power unless they are defeated in an election.

A good example would be the President of Portugal, Jorge Fernando Branco de Sampaio, who in 2004 not only refused to grant new elections following the resignation of the Prime Minister, but infuriated most of the country when he appointed Pedro Santana Lopes as Prime Minister – who was sacked within 5 months for being, well, the Portuguese equivalent of Dan Quayle.  Sampaio was otherwise a popular President, but his handling of the situation tarnished the reputation of his office.

The monarch is also best placed to act as the final guarantor of the constitution.  This happens only exceptionally, as ministers tend to act responsibly, but there have been occasions when it could theoretically have been put to the test.  For example, if the government sought to bring in reforms that would subvert the democratic basis of the constitution, such as stipulating that ministers cease to be accountable to Parliament, or by gerrymandering the electoral system to benefit one party.  Indeed, it could be said in many occasions unconstitutional acts don’t happen because the ministers realise that the monarch would be obliged to decline the request in the interests of impartiality.

This impartiality is borne of the monarchy being set above and apart from the day-to-day political actors.  It’s for the same reason that most British people recoil in fear and suspicion at the proposal of elected judges or police officers – it flies in the face of our concept of impartial execution of power.

The monarch is bound to accept all other ministerial advice.  If she didn’t, the likely consequence would be the resignation of the government.  The monarch would then be unable to find an alternative government (as presumably the outgoing government had a majority) and would be forced to call an election.  The politicisation of the monarchy in this way would likely see the return of a hostile Parliament highly critical of the monarch’s actions and likely lead to a swift abolition of the Crown.

Just because she’s bound to follow ministerial advice, however, doesn’t make the monarch a mere nonentity in this area.  In Bagehot’s famous turn of phrase, the monarch has ‘the right to be consulted, to encourage and to warn’.  Outright opposition to the will of an elected government would never work, but the monarch has a more useful role in acting as a sounding board, a conscience for the minister when considering his pet projects.  The monarch has the right to speak her mind to the minister in absolute confidentiality, but if the minister’s mind is made up, the monarch must concede.

The Queen’s life looks luxurious but it is certainly not idle.  Her ‘red boxes’ are as plentiful as any minister.  After all, her success as the government’s conscience, her success as Head of the Commonwealth, her success as constitutional umpire and her success as the national symbol requires her to be as on the ball as possible.  She receives diplomatic communiqués and some reports on domestic security before the Prime Minister does. If you’re interested, check out the following link on the website of the British Monarchy.

Sources:

Bogdanor, V (1997) The Monarchy and the Constitution, Oxford University Press

Categories: Monarchy, UK Constitution

The Monarchy and British History

June 17, 2010 1 comment

“The monarchy is a political referee, not a political player, and there is a lot of sense in choosing the referee by a different principle from the players. It lessens the danger that the referee might try to start playing.”

— The Rt Hon. Conrad Russell, 5th Earl Russell

People measure the origins of the monarchy in different ways.  1066, when the Norman King William I seized power; or 924, when King Aethelstan of Mercia became King of the English in name and in law; or 886, when Alfred the Great first claimed sovereignty over England, even if it wasn’t complete; genealogically, we could trace it to at least 519, when Cerdic founded Wessex (and who, incidentally, claimed inheritance through the ages directly from Odin himself).  The monarchy’s roots of course are also Scottish, going back at least to Kenneth I, founder of the Kingdom of the Picts in 843, and tracing far back into Pictish and Irish origins. The monarchy, clearly, is old.

While other countries often have a major historical event, such as a revolution, unification or independence as their symbol, Britain has never had a nation-defining revolution and never had to seek independence from a foreign power.  While a Union was formed in 1707, the Union has never caught the imagination of the people in the same way as, for example, the Risorgimento in Italy or Confederation in Canada.  Britain’s monarchy, on the other hand, has been at the forefront of all the major nation-defining events in British history; the forging of England by Alfred the Great; the birth of Scotland under Kenneth MacAlpin; the first parliaments; the creation of the state churches; the Scottish Wars of Independence against England; the Union of the Crowns; the Civil Wars; the Glorious Revolution; the Act of Union, and tons more.

But what, historically, was a monarch for? In some instances a local tribal chief would seize control and become king by force; in other occasions the monarch was elected from among local tribal leaders to lead them all collectively. In England and Pict/Scotland for many centuries, the king would be elected from among powerful nobles to be entrusted with the safety of their subjects and to act as overseer of the laws. A monarch, then, doesn’t have to be hereditary. Normally, though, they are monarch for life (with the possible exceptions of the President of France and the Yang di-Pertuan Agong of Malaysia).

Ancient societies put great store in inheritance. In decaying Roman Britain, besieged military garrisons relied increasingly upon sons of veteran captains who would have been trained under their wing.  For example, “Old King Cole” is at the head of many ancient Welsh royal genealogies, and appears to have been a Roman commander at Hadrian’s Wall called “Coel Hen”, or there’s Dumnagual, who appears to have governed in the Stratchclyde region at around the same time.

The enormous turmoil in the fall of Rome and the destruction of huge swathes of public and private property with successive waves of barbarian invasions uprooted many settled and wealthy peoples and focussed responsibilities for defence on the few figures of authority that remained. With the decline in stable government and property rights, the concepts of property and inheritance eventually transferred to politics and power.

Additionally, the spread of religion reinforced the notion of family in British societies. The idea of God the Father was coupled with the notion of the King being God’s national delegate and father of the nation. Ergo, the monarchy was head of the national ‘family’, and inheritance of the reigns of power made sense from this point of view.

The monarchy served a useful function in early Britain, as chief executive and source of state power and justice. The power of the monarchy ebbed and flowed during the Middle Ages, chiefly against the power of the nobility. The rise of the Tudor dynasty established England’s early modern centralised state. The rise of this modern state led some to question how appropriate it was for such enormous power to be held by one person, potentially threatening to the ancient rights of the people.

The brutal conflict of the 1640s, commonly known as the English Civil War, more accurately called the War of the Three Kingdoms, was fought throughout Britain to answer this question. The republican experiment proved it wasn’t simply its inherited status that was the problem, but a matter of effective accountability and checks to sovereign power. British society became nostalgic for the rights and freedoms monarchy had guaranteed, and the monarchy was restored in 1660.

The civil war and the republic that followed was still a fresh memory for many in Britain when the constitution again fell into the balance in 1688, and the framers of the Glorious Revolution wanted to avoid the concentration of power as happened with Oliver Cromwell. Rather than abolish the monarchy, Parliament brought the monarchy under its formal control, knowing that the Crown could still serve as a force for good in Britain. The monarchy remained an executive monarch for another few years, but by the mid 18th century the modern concept of parliamentary government was established and the monarch took on a new role, that of symbol and of watchdog.

Republicanism has peaked and troughed in fortunes throughout early modern British history; after the Civil Wars, in the midst of the French Revolution, during Queen Victoria’s years of mourning for Prince Albert, with the rise of communism, and now has become fashionable once again in the modern era, particularly in, for example, Australia.  The fact that each period has been followed by a period of heightened loyalty to the institution shows a number of things.  Firstly, there is nothing ‘inevitable’ about the abolition of the monarchy.  The monarchy has survived countless threats to its position and there’s every cause to assume republicanism will diminish again in the future; secondly, that throughout the modern era monarchy has proven flexible to these challenges and has adapted to new roles as the constitution has grown and matured; and thirdly, that the monarchy needs to continue to adapt and to find a role to serve the United Kingdom and the Commonwealth of Nations if it is to survive.

The oldest law – the Statute of Marlborough, 1267

June 5, 2010 2 comments

The oldest piece of legislation still in force in the UK is the English Statute of Marlborough, passed in 1267 – not Magna Carta; more on that later.

It is observable that the Statute of Marlborough is only two years after de Montfort’s Parliament was disbanded.  One of the problems was that during the recent disorders within the Kingdom of England through the struggle between the King and the barons, some lords and landowners deliberately attacked the land of their neighbours, particularly if they were of the opposing political group.  The law sought to redress this by making such actions accountable to the courts.  Here is the law.

First, the flowerly preamble:

“PROVISIONS made at Marlborough in the Presence of our Lord King Henry, and Richard King of the Romans, and the Lord Edward eldest Son of the said King Henry, and the Lord Ottobon, at that Time Legate in England .In the Year of Grace, One thousand two hundred sixty–seven, the two–and–fiftieth Year of the Reign of King Henry, Son of King John, in the Utas of Saint Martin, the said King our Lord providing for the better Estate of his Realm of England, and for the more speedy Ministration of Justice, as belongeth to the Office of a King, the more discreet Men of the Realm being called together, as well of the higher as of the lower Estate: It was Provided, agreed, and ordained, that whereas the Realm of England of late had been disquieted with manifold Troubles and Dissensions; for Reformation whereof Statutes and Laws be right necessary, whereby the Peace and Tranquillity of the People must be observed; wherein the King, intending to devise convenient Remedy, hath made these Acts, Ordinances, and Statutes underwritten, which he willeth to be observed for ever firmly and inviolably of all his Subjects, as well high as low.”

..and here we find the actual law.  It requires that farmers and landowners may not deliberately neglect to upkeep the facilities on their land to the detriment of tenants and workers.  It also requires that attempts to secure recompense for damages may only be legally obtained through the courts:

“Also Fermors, during their Terms, shall not make Waste, Sale, nor Exile of House, Woods, Men, nor of any Thing belonging to the Tenements that they have to ferm, without special Licence had by Writing of Covenant, making mention that they may do it; which thing if they do, and thereof be convict, they shall yield full Damage, and shall be punished by Amerciament grievously.”

‘Tenement’ refers to land held, rather than owned.  1267 being at the height of the feudal era, the land would be held by a noble on behalf of the king, or on behalf of another noble.

‘Amerciament’ is an arbitrary punishment to be determined by the authorities.

In response to a comment: from what research I have quickly done, the licence would essentially be a common law written agreement between the two parties in a procedure called a covenant-at-law.  The agreement was enforceable to the next generation of landlords and tenants until both agreed to alter it.  In case of breaches local courts would administer justice.

Categories: History

The King will legislate through Parliament alone – 1322


King Edward II’s reign was not altogether a happy one for England; more on that at a future date.  There was at least one signficant and long-lasting change; in 1322, the King pledged that henceforth and forever, all laws would be created and amended through Parliament.

In essence, Edward was confirming established practice, but this was in the light of recent violations of the law by himself.  Edward was in the midst of yet another power struggle with the Commons, Lords and Clergy over his association with powerful individuals, notably his favoured Hugh Despenser.  Edward angered the nobility by ignoring laws and clearly acting to accrue wealth and power to the Despensers; following a rebellion in 1321 led by the Earl of Hereford and the Earl of Lancaster, Edward was forced to treaty with the barons and made the following pledge:

“It is accorded and established, at the said Parliament, by our Lord the King, and by the said Prelates, Earls, and Barons, and the whole Commonalty of the Realm, at this Parliament assembled, That all the Things, by the said Ordainors ordained and contained in the said Ordinances, shall from henceforth for the Time to come cease and shall lose their Name, Force, Virtue, and Effect for ever; The Statutes and Establishments duly made by our Lord the King and his Ancestors, before the said Ordinances, abiding in their Force: And that for ever hereafter, all manner of Ordinances or Provisions, made by the Subjects of our Lord the King or of his Heirs, by any power or Authority whatsoever, concerning the Royal Power of our Lord the King or of his Heirs, or against the Estate of our said Lord the King or of his Heirs, or against the Estate of the Crown, shall be void and of no Avail or Force whatever; But the Matters which are to be established for the Estate of our Lord the King and of his Heirs, and for the Estate of the Realm and of the People, shall be treated, accorded, and established in Parliaments, by our Lord the King, and by the Assent of the Prelates, Earls, and Barons, and the Commonalty of the Realm; according as it hath been heretofore accustomed.”

The Despensers were. as consequence, banished and the monarchy became more dependent upon Parliament for his power.