Press Notice No.12
PASC URGES DEBATE ON NEW LAW TO MAKE SURE MINISTERS LISTEN TO PARLIAMENT
Honours system also under the spotlight in inquiry into ministers and their prerogative powers
PASC-the House of Commons Public Administration Select Committee-today raises the possibility of a radical new law to make Ministers much more accountable to Parliament. The new Act would force Ministers to seek Parliament's approval for their use of a wide range of major executive powers under the "royal prerogative"-including the right to confer honours, run the Civil Service, grant passports, deploy troops and make treaties.
In an "issues and questions" paper published for consultation today, the Committee sets out the long history of how Ministers acquired this array of powers direct from the Monarch over the last few centuries-without Parliament having any real say. It proposes that, in a fundamental constitutional shift, Parliament should have the right to list these powers and that the new Act be the sole authority for their use. The practical effect might be to alter the balance of power between government and Parliament, with Parliament deciding which powers should be given to Ministers and which should not be given.
The Committee will be taking a specific look at one aspect of the prerogative-the honours system. In a break with tradition, it has asked the Cabinet Office for oral evidence on the machinery by which recommendations for honours are made. The Committee will not be examining the Royal Family, the Royal Household or any of the Queen's own legal and constitutional prerogatives.
A related issues and questions paper, on a possible Civil Service Bill, will be published shortly.
Commenting today, Committee Chairman Tony Wright MP said:
"Much of government in Britain is based on ancient powers handed down from Monarchs to ministers. It is time to re-examine this strange state of affairs, which means that vital functions of our government, from the power to run the Civil Service to the power to deploy troops at home and abroad, rest on uncertain and antique foundations. Few other countries have such opaque constitutional arrangements.
"No-one doubts that ministers need to have effective executive powers, but it is vital that Parliament has a chance to scrutinise them properly before they are exercised. It is no longer enough for Parliament to have the chance to examine decisions after they have been taken. The Committee has already heard evidence which suggest that a new Act would help produce a better balance between the powers of Parliament and the powers of ministers. A wide ranging debate now needs to take place, and I hope that our paper will be the catalyst for it".
A copy of the issues and questions paper follows.
Ministerial Powers and the Prerogative
An Issues and Questions Paper
1. The Public Administration Select Committee is inquiring into the prerogative powers of Ministers. This paper sets out some of the issues on which the Committee wishes to hear views. It contains a list of questions which is not exhaustive, but which outlines the main areas for discussion. The Committee is publishing this paper to encourage debate and provide a basis for evidence in the inquiry.
What are Prerogative Powers?
2. No authoritative definition exists of what is known as the 'royal prerogative'. It has been described as 'the remaining portion of the Crown's original authority, and it is therefore ... the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers'. (A.V. Dicey) The royal prerogative is recognised by the courts as part of the common law.
3. For the sake of convenience, the prerogative can be subdivided into three main groups of rights and powers.
The Queen's constitutional prerogatives are the personal discretionary powers which remain in the Queen's hands. They include the rights to advise, encourage and warn Ministers in private; to appoint the Prime Minister and other Ministers; to assent to legislation; to dissolve Parliament; and (in grave constitutional crisis) to act contrary to or without ministerial advice. In ordinary circumstances the Queen, as a constitutional monarch, accepts ministerial advice whether she personally agrees with it or not. The Committee is not mainly concerned with these constitutional prerogatives, or with the wider constitutional position of the Queen.
The legal prerogatives of the Crown, which the Queen possesses as the embodiment of the Crown. There are many such prerogatives which are legal (rather than constitutional) in character. Several are historical remnants, such as the Crown's rights to sturgeon, certain swans, and whales, and the right to impress men into the Royal Navy. But two legal prerogatives have more modern legal significance, namely, the principle that the Crown (or the state) can do no wrong, and that the Crown is not bound by statute save by express words or necessary implication. Many of these legal prerogatives have been amended by parliamentary legislation; others are in need of reform; some others may be obsolete. It has been suggested that these legal prerogatives could be referred for consideration by the Law Commission, but we have no remit in this area, and are not therefore seeking evidence on this category of powers.
Ministerial prerogative or executive powers form the category of prerogatives which is the main subject-matter of the Committee's current inquiry. Historically, the Monarch by constitutional convention came to act on ministerial advice, so that prerogative powers came to be used by Ministers on the Monarch's behalf. As Ministers took responsibility for actions done in the name of the Crown, so these prerogative powers were, in effect, delegated to responsible Ministers. But Parliament was not directly involved in that transfer of power. This constitutional position means that these prerogative powers are, in effect though not in strict law, in the hands of Ministers, and so more realistically could be dubbed 'Ministers' executive powers'. Without these ancient powers Governments would have to take equivalent authority through primary legislation. As with the legal prerogatives just outlined, the connection between these powers and the Crown, or the Queen, is now tenuous and technical, and therefore the label 'royal prerogative' is apt to mislead. Indeed, MPs have been prevented from raising certain matters in the House (such as honours) on the ground that these matters involve a royal connection, even though it may now be merely formal.
Ministers' executive powers
4. The principal prerogative, or executive, powers, exercised by Ministers include the following.
(i) The making and ratification of treaties.
(ii) The conduct of diplomacy, including the recognition of states, the relations (if any) between the United Kingdom and particular Governments, and the appointment of ambassadors and High Commissioners.
(iii) The governance of British overseas territories.
(iv) The deployment and use of the armed forces overseas, including involvement in armed conflict, or the declaration of war. (The Royal Navy is still maintained by virtue of the prerogative; the Army and the RAF are maintained under statute).
(v) The use of the armed forces within the United Kingdom to maintain the peace in support of the police.
(vi) The Prime Minister's ability to appoint and remove Ministers, recommend dissolutions, peerages, and honours (save for the four Orders within the Queen's own gift), patronage appointments (e.g. in the Church of England), and the appointment of senior judges.
(vii) Recommendations for honours by the Foreign and Commonwealth Secretary and the Defence Secretary.
(viii) The organisation of the civil service.
(ix) The grant and revocation of passports.
(x) The grant of pardons (subject to recommendations by the Criminal Cases Review Commission) and the Attorney-General's power to stop prosecutions.
The Committee has long had an interest in the accountability and conduct of ministers. It has published several reports on Ministerial Accountability and Parliamentary Questions (most recently the Ninth Report of Session 2001-02, HC 1086) and it has also reported on the Ministerial Code (Third Report of Session 2000-01, HC 235).
5. Ministers' executive powers do not require, either by law or convention, parliamentary approval before or after they are used. Parliament does not even have to be told that they have been exercised: indeed, Ministers have said that no record is kept of their use, and that it would not be practicable to do so. The United Kingdom is typical of states which permit Ministers to use certain powers without parliamentary approval. But in other democracies this is provided for expressly in their Constitutions or by statutory authority. The United Kingdom is highly unusual in having neither a codified constitution nor having made such express grants of power by the legislature.
6. Ministers are accountable to Parliament for the use of prerogative powers just as for things done under statutory or common law authority. Most powers used by Ministers today come from statute (which, by definition, has been approved by Parliament) rather than from the prerogative. It should also be stressed that the scope of the prerogative cannot be extended. Parliament has limited or abolished prerogatives. Parliament has also put some prerogatives on a statutory footing, as with the Interception of Communications Act 1985, the Security Service Act 1989, and the Intelligence Services Act 1994. Moreover, some non-legal rules have been adopted so as to provide procedural safeguards, for instance in relation to the ratification of treaties (the Ponsonby rule), and over the revocation of passports. Many public appointments are now subject to regulation and monitoring by a Commissioner and must be made in accordance with 'Nolan' rules recommended by the Committee on Standards in Public Life. The courts, too, can review the legality of the use of some prerogatives, although they do not have a remit over all of them, and the courts can only help the aggrieved citizen after the event.
7. The Committee recognises that the ministerial executive powers set out above are necessary for effective government, and that they are subject to a number of checks and balances. However, the Committee believes that Ministers' use of them needs to be properly scrutinised. Without any change in the law, the authority to use prerogative powers has been delegated for at least a century by the Monarch to Ministers. Parliament was not involved directly in that transfer of power. Parliament was not consulted and did not agree to it: the most that could be said is that Parliament acquiesced in the change. Parliament has not been asked whether any of these powers should be possessed at all by Ministers, or whether some should be so enjoyed but on condition that (for example) citizens' rights were protected against misuse of the powers. Our constitution has developed so as to allow Ministers to receive a delegation of power from the monarchy without any recourse to Parliament, and the Committee believes that there are a number of arguments against leaving this state of affairs unquestioned and undisturbed at the beginning of the twenty-first century. Four years before it came to power, the party now in government committed itself to a fundamental change, denouncing the ministerial prerogative as government by executive decree. That situation, it is argued, is exacerbated by the so-called Ram doctrine, which asserts that governments have the power to do anything which is not prohibited by statute or the common law. Although that doctrine has been modified where human rights are concerned, it is seen as producing further uncertainty over the scope of ministerial power.
How might executive powers be made more accountable?
8. This inquiry aims to set out ways in which democratic accountability might be increased in relation to executive powers, and to suggest means by which some of the old powers might be modernised.
9. As a minimum, principles upon which Ministers' executive powers ought to be exercised could be formulated by this Committee and accepted by government. Such principles might include, for instance, those of accountability, efficiency, and transparency; the Seven Principles of Public Life should be considered in this context. The Committee would like to assess how accountability to Parliament could be improved in relation to executive powers, and how other appropriate principles might be formulated and applied. In doing so, it may be that rules could be suggested which, to take two instances, would require explicit parliamentary approval of those treaties which do not now require such approval, and which would demand the express consent of the House of Commons either before the armed forces were sent into combat or within a specified time afterwards.
10. A further goal of this inquiry is to draw attention to particular executive powers whose scope or exercise appears to raise special concern, and to suggest mechanisms through which those concerns could be addressed. Some executive powers are currently being considered as part of wider reviews, or soon will be. For instance, this Committee's work on a draft Civil Service Bill aims to clarify and where necessary improve the position of the civil service under the prerogative. Again, the whole system of judicial appointments will soon be put out to consultation by the Lord Chancellor's Department, and that might result in changes to the Prime Minister's power to recommend the appointment of Lords Justices of Appeal and Lords of Appeal in Ordinary.
11. This Committee is not in a position to undertake a detailed review of every aspect of Ministers' executive powers. But it has decided that one area should be the subject of a case study, namely, the honours system and the role which it plays in British government and administration. It is hoped that the role and work of the Honours Scrutiny Committee will be examined in this context.
12. The Committee is conscious, however, that an approach which depended on a number of discrete inquiries and possible ad hoc changes might not address the major issues of democratic accountability which have been raised. The Committee therefore intends to consider a possible major statute which would be the new, and only, authority for the delegation of the Crown's authority to Ministers. This would be a joint enterprise by Monarch, Commons, and Lords, legislating-as usual-as the Queen in Parliament.
13. There are two possible models for such a statute. Model A would be an Act which expressly confirmed the prerogative powers listed in a schedule to the Act, all others being abolished. It would naturally be for Parliament to decide which, if any, prerogative powers should be put in the schedule, and which should be left out of it and thereby abolished as a result of that deliberate omission. It would also be for Parliament to surround with any appropriate statutory safeguards the prerogatives which were retained. Because the Committee does not wish to disturb in this inquiry The Queen's constitutional prerogatives, it would intend that those prerogatives would be among those to be preserved by the Act.
14. The alternative statute, Model B, would be much more radical. It would include a 'sunset clause' for outmoded powers. This Act would state that any prerogative powers which were not expressly confirmed by subsequent primary legislation by a date specified in the Act would be abolished. Such subsequent legislation might confirm some powers as they now are; others might be continued but subject to new conditions to satisfy the principles of good government or the protection of the citizen. For instance, the power to issue passports might be enacted, but along with (say) a statutory presumption that the citizen was entitled to a passport, together with an appeal mechanism against a refusal of a passport or its revocation.
15. Both models would ensure that it would be the representative Parliament which would provide the authority for prerogative, or executive, powers, rather than the old authority of the Crown. Any powers which are deemed inappropriate in a modern democratic state would be abolished. Statutory safeguards for Parliament and for the citizen over the future use of such powers could be added. We intend to examine not only the legal and constitutional issues raised by the prerogative, but also to consider some of the practical implications of possible reform, including the likely effect on the parliamentary calendar.
HOW TO RESPOND TO THIS PAPER
PASC would like to receive responses to any or all of the questions below. Although some of the questions could theoretically be answered by a simple yes or no, the Committee would especially value extended memoranda with background evidence where appropriate.
Memoranda will be treated as evidence to the Committee and may be published as part of the final Report. Memoranda submitted to the Committee should be kept confidential unless and until published by the Committee.
Memoranda should be submitted by
4 July 2003 as hard copy on A4 paper, but please send an electronic version also, on computer disk in Rich Text Format, ASCII, Word or WordPerfect 8 or email to firstname.lastname@example.org
Hard copies should be sent to Philip Aylett, Clerk, Public Administration Select Committee, Committee Office, First Floor, Portcullis House, London, SW1A 2LW.
The Committee is currently holding oral evidence sessions on this issue.
(1) Is it the case that the current checks and balances relating to Ministers' executive powers (summarised at para. 6) are adequate in a modern parliamentary democracy?
(2) Is a fresh statement of principles needed upon which Ministers' executive powers should be exercised, and, if so, what should those principles be? (Some examples are indicated at para. 9).
(3) Do we need an honours system? If an honours system is needed, what reforms, if any are needed? What is the effect of the operation of the honours system on the civil service and on public services and public administration in general?
(4) The Committee suggests that a major new statute could be enacted, through which, for the first time, Parliament would give express authority for the existence and use of Ministers' executive powers (see paras. 13-15). Is that approach right? If so, which of the suggested models for the statute - or which other model - would be preferable? What might be the demands made by such legislation on the finite supply of Parliamentary time, and how could such demands be minimised?
20 May 2003