COMMONS

Issues and Questions: Prime Minister, Prerogative and Power

The Political and Constitutional Reform Committee has decided to conduct an inquiry into the role and powers of the Prime Minister, and how these are defined and held to account.

This paper briefly sets out some of the issues and questions likely to be covered in its inquiry. The Committee welcomes responses to any of the questions raised.

Issues

The role of the Prime Minister

The Prime Minister’s role is peculiarly British in two ways. The first is that as the Head of Government, he must control the House of Commons to remain in office, but he is not chosen by the House or directly elected by the British people as a whole. The second is that there is no codified definition of his role set out in statute, or anywhere else.

Roughly two hundred years after the office of Prime Minister first came into existence, the Ministers of the Crown Act 1937 gave "statutory recognition to the existence of the position of Prime Minister, and to the historic link between the Premiership and the office of First Lord of the Treasury", but only by specifying how much he was to be paid. The only parliamentary attempt to define the role of the Prime Minister in statute (960 MB PDF) was proposed by a back-bencher (Committee Chair Graham Allen MP), received no government support, and consequently made little progress. Until the draft Cabinet Manual was published in December 2010, there was no easily available official text describing the role of the Prime Minister. The draft Manual summarises his role as follows:

"The Prime Minister is the head of government by virtue of his or her ability to command the confidence of the House of Commons. He or she is appointed by the Sovereign and in turn recommends to the Sovereign the appointment of ministers to the Government ... The Prime Minister is also responsible for the organisation of government and the allocation of functions between ministers, who derive their powers from statute, the Royal Prerogative and the common law. The Prime Minister, advised by the Cabinet Secretary, may make changes to the machinery of government."

The powers of the Prime Minister

Statute defines a variety of specific powers to be exercised by the Prime Minister (although often in his capacity as First Lord of the Treasury or Minister for the Civil Service) or other ministerial offices within his gift. For example, the Constitutional Reform and Governance Act 2010 states that "The Minister for the Civil Service has the power to manage the civil service."

Some of the Prime Minister’s powers, however, have not been defined by Parliament. These are the powers of the Monarch, exercised in practice by the Government of the day. These powers include both ordinary common law powers, exercised on the basis that the Crown is a corporation sole, as described under the Ram Doctrine (536.99 MB PDF), and powers that are particular to the Crown, and that the Prime Minister exercises through the Monarch under the ancient royal prerogative. The power to manage the civil service was exercised under the prerogative until 2010. War-making powers continue to be exercised under the prerogative.

It took the Government several years to produce a list of these prerogative powers, and even this list does not claim to be complete:

"The scope of the Royal prerogative power is notoriously difficult to determine. It is clear that the existence and extent of the power is a matter of common law, making the courts the final arbiter of whether or not a particular type of prerogative power exists. The difficulty is that there are many prerogative powers for which there is no recent judicial authority and even no judicial authority at all. In such circumstances, the Government, Parliament and the wider public are left relying on statements of previous Government practice and legal textbooks, the most comprehensive of which is now nearly 200 years old."

An example of this difficulty is the prerogative power to act to maintain law and order where no emergency exists, which was not widely recognised until defined by the Court of Appeal in 1989. (Reference: R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] QB 26 (CA)) 
The last Government argued against seeking to transfer the remaining prerogative powers to statute, for these reasons:

  • "Prerogative powers can provide flexibility." (eg to tackle exceptional urgency or disruption outside the framework of the Civil Contingencies Act)
  • "Disentangling the current framework ... would be a large-scale and complex exercise." (eg. the armed forces, and policing)
  • "Legislating in [some] cases would be a questionable use of Parliamentary time." ("archaic" powers, eg. the Crown’s right to sturgeon)
  • "It is questionable whether decisions made carefully and after considerable debate should so soon be overturned." (eg. The BBC Charter Review)

The current Government has "no current plans" in two areas in which the last Government was considering legislating (passports) or proposing a parliamentary resolution (committing troops to armed conflict).

Under the Coalition Agreement for Stability and Reform (78.48 KB PDF), published in May 2010, the Prime Minister agreed that a number of prerogative powers, including the appointment of ministers, would only be exercised after consultation with the Deputy Prime Minister.

Structures of power

Formally, the Prime Minister’s Office (Number 10) is a business unit within the Cabinet Office.

In January 2010, the House of Lords Constitution Committee published a report on the Centre of Government, which considered, among other things, the way in which civil service (including special adviser) support was provided to the Prime Minister, and the Prime Minister’s evolving role. Its central recommendation was that "structures of accountability should mirror structures of power." But it could not establish a clear and unambiguous picture of how those structures of power operated in practice:

"Sir Gus O’Donnell asserted that 'there is one Cabinet Office of which Number 10 is a subset'. This description of the relationship between the Cabinet Office and Prime Minister’s Office was not reflected in other evidence that we received. It conflicts, for instance, with the statement of Lords Armstrong, Butler and Wilson, that the two offices are 'functionally distinct'. It is open to doubt whether Sir Gus O’Donnell’s description of the Prime Minister’s Office as a 'subset' and a 'business unit' goes beyond what Sir Richard Mottram told us, that "Number 10 is part of the Cabinet Office for public expenditure planning purposes”, and whether it accurately describes how the centre operates in practice."

Questions

    1. Is there sufficient clarity as to the Prime Minister’s role and powers?
    1a. Should the Prime Minister’s role and powers be codified in statute or otherwise?

    2. How has the role of the Prime Minister changed in recent years?
    2a. How has this process of change been brought about and controlled?

    3. What is the impact of coalition government on the role and powers of the Prime Minister?

    4. Are there sufficient checks and balances on the powers of the Prime Minister?
    4a. If no, what additional or improved checks and balances are required?
    4b. Is any further change required with regard to specific powers currently exercised under the royal prerogative, by transferring them to statute or otherwise?

    5. Is the Prime Minister sufficiently accountable personally to the electorate, to Parliament, and otherwise?
    5a. If no, how should his accountability be improved?

    6. Are structures of power beneath the Prime Minister sufficiently clear and accountable?
    6a. If no, how should this clarity and accountability be improved?

    7. Should the Prime Minister be directly elected by the British people?

How to respond to this paper

The Committee would appreciate receiving responses to any or all of the questions in this paper. Although some of the questions could be answered by a simple yes or no, it would be valuable to have fuller responses in order for the Committee to understand the points being made. Some respondents may wish to concentrate on those issues in which they have a special interest, rather than answering all of the questions. Respondents may also wish to suggest any proposed recommendations for action by the Government or others.

Written responses to this issues and questions paper will be treated as evidence to the Committee and may be published. If you object to your response being made public in a volume of evidence, please make this clear when it is submitted.

Responses should be submitted by midday on Monday 28 February by email to [email protected] in Microsoft Word or rich text format. If you do not have access to email, you may send a paper copy of your response to the Clerk of the Political and Constitutional Reform Committee, Committee Office, First Floor, 7 Millbank, London SW1P 3JA.