Appendix C
PREROGATIVE POWERS: HONOURS
I am writing about the Public Administration
Select Committee's work on prerogative powers, and in particular
the honours system.
I have studied the British and Commonwealth
systems over many years, and have written several articles for
specialist publications, as well as helping with the 1996 edition
of the HMSO publication Honours and Titles, where you will find
my name in the acknowledgements. I may therefore be able to help
the committee, as I have some expertise on the subject.
I am also a civil servant, working in one of
the larger departments, but would emphasise that this submission
is made in a purely personal capacity.
I only recently became aware of the PASC's work
on prerogative powers and have studied the evidence given to the
committee by Robin Butler, Richard Wilson, Hayden Phillips and
others. The general approach of the witnesses showed the breadth
of their experience and a reasonably open mind to reform, but
some of the evidence demonstrated a lack of knowledge and, on
several occasions, a desire not to help the committee to see the
bigger picture.
I am aware that the PASC Press Notice of 20
May 2003 invited memoranda to be submitted by 4 July 2003, but
as that timetable was so short and as I believe that I can provide
some input that may be of interest, I thought to send the attached
notes.
My notes do not form a coherent submission,
dealing with prerogative powers in general, or the prerogative
powers as they affect all honours, but rather they draw attention
to some of the evidence that you have already taken, and suggest
further questions that you may wish to consider.
I have not provided my own answers to the questions,
or submitted draft clauses for legislation, but could do so if
that would help, and time permits. In general, however, my response
to the questions I have posed would show my belief that there
is need for major reform and much greater public scrutiny.
PREROGATIVE POWERS: HONOURS
28 July 2003
1. General
The following notes concentrate on the orders.
Other considerations apply to honours such as peerages and membership
of the Privy Council, and I could let you have a further note
if that would be of interest.
The remarks deal with United Kingdom honours,
and do not cover matters that fall within prerogative areas of
say the Queen of Canada or the Queen of Australia.
The majority of matters fall within Westminster's
sphere, rather than that of the Welsh Assembly or the Scottish
Parliament. There are two possible exceptions that are mentioned
below: the Order of the Thistle and the Court of the Lord Lyon.
I have not included sources, but can provide
them if that would help.
2. Criticism
The committee was referred to the absence of
a settled high level of criticism of the system, by which the
witness probably meant criticism from the general public about
low level awards. There is, however, ample evidence of opposition
to the distribution of honours in other sources, as demonstrated
by press comments over a period of many years in which the theory
and practice of the system has been attacked.
The absence of public criticism almost certainly
flows from ignorance about the present system: consider a company
that gives a quality pen to well-deserving employees each year
to say "thank you", while the directors receive a BMW
for the same reason. If the employees don't know what the directors
receive then the pens may be fine, but attitudes could change
if they find out about the BMWs. Contrast the rights of an MBE
with those of a GCB, and my corporate analogy probably fits.
Questions
— What evidence is there that the system
avoids high levels of criticism from a public which is in possession
of the facts?
— Should there be one award for all
types of service and all grades, with further service being marked
by additional grants of the single level award?
3. Regulation
Most orders were created by letters patent or
royal warrant, and none were founded by Act of Parliament. The
initial documents were followed by regulations, known as statutes,
which require no parliamentary scrutiny or approval, although
some are still countersigned by secretaries of state, including
the foreign secretary (Order of St Michael & St George) and
the home secretary (Imperial Service Order).
The founding documents were sometimes published
in The London Gazette, but most of the statutes were never published
officially, and the Central Chancery of the Orders of Knighthood
has refused to make them available.
In a number of orders, the regulations have
never been consolidated, and some are now more than 300 years
old and largely irrelevant to today's needs.
Questions:
— Should the orders and their statutes
be the subject of an Act?
— Should the statutes be published
officially in The London Gazette or elsewhere?
— What role should secretaries of state
exercise in relation to the orders?
— Should the statutes be revised and
consolidated to reflect modern use?
4. Discrimination
The orders contain examples of discrimination,
which may be shielded by the prerogative. There are two main areas:
religion and gender.
Religion
Many orders have a chapel, where prescribed
ceremonies take place, and all are located in Christian settings,
including Westminster Abbey (Order of the Bath) and St Paul's
Cathedral (Order of the British Empire). There are also officers
in several of the orders who are formally attached to the Church
of England, including the dean of Westminster (Bath) and the bishop
of London (British Empire). Most active religious observance was
removed from the British orders during the 19th century,[4]
but much of this was introduced or re-introduced between 1906
and 1913.[5]
Some orders require new members to take a religious
oath. In the case of the Thistle, members must agree to "fortify
and defend the Christian religion", while GCB's are required
to "be steadfast in the Faith of Christ". Non-Christians
may therefore be unable or unwilling to fulfil the obligations
imposed by certain orders, and so effectively barred from joining.
Questions:
— Should the orders have any religious
base, or an alternative secular base?
— Should any continuing religious dimension
be Christian?
— What religious barrier should there
be to the acceptance of an honour?
— Should the clerical officers be Christian
deans and bishops?
— What should happen to the orders'
assets that are now in Christian chapels?
Gender
The system exhibits gender inequality, for example
in (a) the use of DBEs for female judges, who are deemed to be
incapable of becoming a knight bachelor, and (b) the use of the
prefix Lady for the wife of a knight, but no Sir for the husband
of a dame.
Questions:
— Should the dignity of knight bachelor
be made available to women?
— Should prefixes for spouses be unified
or abolished?
5. Automaticity
The reference to knighthoods for judges was
stated in evidence to be the only example of an automatic honour
(Q276). This raises a number of issues.
Judges
The reason for the grant of the dignity of knight
bachelor to High Court judges was said to preserve their independence
from executive interference (Q277).
Questions:
— Should individuals at the lowest
levels of the judicial structure be granted honours, to preserve
their independence?
— Does the issue of judicial compromise
not demonstrate corrupting influences?
Other awards
Hayden Phillips referred to automaticity and
judicial awards (Q276), and indicated that no other honours were
automatically linked to jobs. He presumably defined automaticity
as invariable or normal practice, since judges have no statutory
right to have the prerogative exercised on their behalf. If this
interpretation of the witness's definition is correct, then there
are many more automatic honours.[6]
The concept of automaticity for permanent secretaries
was rejected (Q266), but can be proved by a simple analysis, which
shows that every permanent secretary from 1991 who did not hold
the KCB attained that minimum grade within a decade.[7]
Questions:
— Are honours of the type listed in
Annex 1 automatic honours?
— If so, should such automatic awards
be continued?
6. Aspects of the system
The criteria for awards and the selection of
candidates are key parts of any continuing honours system. The
current distribution of places in the orders is largely based
on rank, and there are virtually no important exceptions. In the
case of the Bath, the statutes even prescribe minimum ranks for
the grant of certain honours.[8]
The influence of prerogative powers was evident
from the responses given by the officials involved in the care
and management of the honours system, for example in statements
such as we sort out the level (Q186), what we are
looking for at each level (Q193) and the standards which . . .
we are laying down (Q284).
The witnesses concentrated on quantity rather
than quality, and so evidence about the 1993 reforms (Q53/196)
distorted the position by focusing on the lowest levels, those
of OBE and MBE. John Major's reforms effectively discontinued
awards of the Imperial Service Order and British Empire Medal,
but apart from that they did little more than make explicit what
was always implicit in the system, namely that the public could
submit recommendations for honours, which happened in the past,
even if no award followed because of the criteria that were then
in place.
The relationship between the state and the individual
is often regulated by statute, and then subject to the right of
appeal, or redress through judicial review or an ombudsman type
process. In relation to the honour system no such appeal or review
procedures exist.
Questions:
— Who should determine the criteria
for award?
— How should any established criteria
for awards be implemented?
— What right of appeal or review procedures
should the system provide?
7. Administration
The orders have more than 40 appointed officers,
who hold commissions from the sovereign, and include religious
and lay personnel, with designations such as chancellor, king
of arms and usher. A few are senior civil servants, including
the permanent secretary at the FCO (secretary of the Order of
St Michael and St George) and the secretary of the Cabinet (secretary
of the Order of the British Empire). They help to administer the
system, in conjunction with officials from the Central Chancery
of the Orders of Knighthood, Cabinet Office, FCO, MOD and so on,
as well as members of the main advisory and scrutiny committees.
Questions:
— What officials should administer
the honours system, and what duties should they perform?
— Should the Central Chancery's role
be transferred to a government department?
— Should the officials be placed on
a statutory basis?
— Should the current departmental divides
continue, or should any system be administered centrally?
8. Reform
Approach to reform
Several witnesses indicated a willingness to
see the system evolve, but only by gradual stages, while they
tended to overlook:
(a)
the significant reforms that have taken place within
living memory, including the creation of the Royal Victorian Order,
Medal and Chain, Imperial Service Order and Medal, and Order of
the British Empire and its Medal, and the cessation of several
orders as a result of constitutional changes in Ireland and India,
and
(b)
the extent of recent changes to the system, as demonstrated
by the decision to end awards of the Imperial Service Medal and
the British Empire Medal, and to substitute MBEs for BEMs, none
of which created the havoc that some witnesses predicted (Q85).
Possibilities for reform
The possibilities for reform include options
ranging from evolutionary to revolutionary:
1.
Revise the current orders, for example by reducing
the number of officials, discontinuing religious services, and
abolishing little-used insignia such as the mantles and collars
assigned to the grand cross grades.
2.
Abolish awards carrying titles, with the first and
second classes being re-named grand cross and grand officer, but
continue most of the existing privileges enjoyed by members, other
than the right to receive the honour of knighthood.
3.
Revise the function of the current orders, for example
limit the Order of the Garter to members of the royal family and
foreign heads of state; use the Royal Victorian Order for all
other foreign purposes, and discontinue all home awards.
4.
Abolish all of the existing orders; allow existing
members to retain certain rights, and deposit the orders' remaining
assets, such as its records, seals and insignia, in one of the
principal national museums or palaces or other suitable location.
5.
Create a new state award, designated the Public Service
Award, for discrete areas of achievement, for example PSA for
Community Services, Defence Services, Education or the Arts.
6.
Create new local honours, which could be awarded
and administered on the basis of existing county or other administrative
boundaries.
7.
Extend the grant of honours by professional bodies,
such as the Royal Society and the Royal Academy, who already confer
medals for certain purposes. This could replace the existing system,
and honours would become a matter for professional bodies and
not the state.
Separate consideration arise in relation to
those countries which use United Kingdom orders, such as Papua
New Guinea, but Commonwealth issues are less important than in
the past, because of recent developments in Australia and New
Zealand.
9. Lord Lieutenants
The role of lord lieutenant was referred to
in evidence. Holders of the post are usually regarded as firm
establishment figures, with clear vested interests. This perception
exists in Scotland, where the lords lieutenant from the last decade
have included dukes, earls and baronets, who do not mirror the
population that they ostensibly serve in the context of the honours
system.
Questions:
— Should a lord lieutenant have any
role in proposing candidates and providing information in support
of public nominations?
— What should happen to the lord lieutenant's
role, if it were removed?
10. Royal Honours
A distinction is usually made between honours
that the sovereign confers on the basis of ministerial advice
(ministerial honours), and those that are conferred without such
advice (royal honours). The second category comprises the Orders
of the Garter, Thistle and Merit and the Royal Victorian Order,
Chain and Medal.
The cost of royal honours is largely met out
of public funds, in part because awards to overseas citizens are
normally granted in connection with state visits. Royal honours
are an integral rather than a separate part of the overall system,
and the current arrangement for the Garter and the Thistle is
fairly recent, as they were only transferred from active political
management in 1946-47.
Questions:
— Should the royal honours be part
of the review of prerogative powers?
— If not, should they still be the
subject of reform?
11. Armorial matters
One area that the committee did not consider,
but is related, is the use of prerogative powers in relation to
minor dignities and other armorial matters, as grants of coats
of arms constitute an honour, and sometime confer noble rank.
Armorial prerogative powers are administered
through the College of Arms in London and the Court of the Lord
Lyon in Edinburgh, neither of which is the subject of any substantive
or recent legislation or parliamentary control.
Questions
— Should the prerogative powers exercised
by the College of Arms and the Court of the Lord Lyon be determined
by legislation?
— If not, should they be the subject
of some other form of parliamentary scrutiny?
4 Installations ceased in the Garter in 1805 and the
Bath in 1812; the Thistle's oath was abolished in 1865 and all
religious ritual was removed from the Order of St Patrick in 1871. Back
5
The Order of St Michael and St George's Chapel was opened in
1906, and the Thistle Chapel in Edinburgh in 1911. Services for
the Order of the Garter were revived at Windsor in 1911, and the
installation of knights grand cross of the Bath began again in
1913. Back
6
See Annex 1, which gives details about some automatic honours
apart from High Court judges. Back
7
See Annex 2, which shows honours granted to permanent secretaries. Back
8
Military division appointments as CB, KCB and GCB are statutorily
barred to anyone below the rank of lieutenant-commander, captain
and rear-admiral or equivalent. Back
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