House of Commons - Public Administration

Select Committee on Public Administration Fourth Report

Report

1. This report concerns an issue of the greatest constitutional importance: the prerogative powers of Ministers. These powers are among the most significant that governments possess, yet Ministers regularly use them without any parliamentary approval or scrutiny. The Committee has examined this situation and considered whether Parliament should play a more active role in the exercise of the prerogative.

2. Our inquiry has revealed a growing interest in this issue. Five oral evidence sessions have been held, and nine memoranda have been received. An informal expert seminar was held in April 2003, and we published an Issues and Questions Paper in May 2003.[1]

Defining the Ministerial prerogative

3. The Ministerial powers we examined all flow from the ancient prerogatives of the Crown. The royal prerogative itself is a notoriously difficult concept to define adequately.[2] The classic definition was given by A.V. Dicey,[3] who described the royal prerogative 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".

4. In preparing for our inquiry we identified three main groups of prerogative powers. This informal division allowed us to concentrate mainly on those prerogative powers which give executive authority to Ministers, and largely to exclude other areas of the prerogative from our consideration. The three areas are described in the following paragraphs.

5. The Queen's constitutional prerogatives are the personal discretionary powers which remain in the Sovereign'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 prorogue or 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 about the use of these powers if it is available, whether she personally agrees with that advice or not. That constitutional position ensures that Ministers take responsibility for the use of the powers.

6. Although we received some evidence about the merits or demerits of these prerogatives,[4] they are not the subject of our inquiry, which is solely concerned with the powers of Ministers. We are not considering any change in the constitutional position of The Queen.

7. 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 the Law Commission should review this group of prerogatives.

8. Prerogative executive powers form the category of prerogatives which has been the main subject-matter of the Committee's inquiry. Historically, the Sovereign by constitutional convention came to act on Ministerial advice, so that prerogative powers came to be used by Ministers on the Sovereign'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. 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 the label "royal prerogative" is apt to mislead. Indeed, Members 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 be merely formal. It makes more sense to refer to these powers not as 'royal prerogative' but as 'Ministerial executive'.

Ministers' main executive powers

9. The principal royal prerogative, or Ministerial executive, powers exercised by Ministers include the following.

a) The making and ratification of treaties.

b) 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.

c) The governance of British overseas territories.

d) 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.)

e) The use of the armed forces within the United Kingdom to maintain the peace in support of the police.

f) 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.

g) Recommendations for honours by the Foreign and Commonwealth Secretary and the Defence Secretary.

h) The organisation of the civil service.

i) The grant and revocation of passports.

j) The grant of pardons (subject to recommendations by the Criminal Cases Review Commission) and the Attorney-General's power to stop prosecutions.[5]

10. We recognise that Parliament is not powerless in the face of these weighty prerogatives. In the past, it has limited or abolished individual prerogative powers, and 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. 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, which states that any treaty which requires ratification must be laid before Parliament 21 days before it is ratified) and over the revocation of passports.[6] Many public appointments, too, are now subject to regulation and monitoring by a Commissioner and are made in accordance with the Nolan rules.[7] The courts can also 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.

11. This Committee has in recent years examined a number of specific prerogative powers, in some cases making recommendations to strengthen the ability of Parliament or certain independent bodies to hold Ministers to account for their exercise of them. This work has included several reports on Ministerial accountability and the Ministerial Code,[8] on patronage and public appointments,[9] and, most recently, on a draft Civil Service Bill.[10]

Ministers' uncertain powers

12. But these restrictions on Ministers' prerogative powers are inevitably limited. Ministers still have very wide scope to act without Parliamentary approval. Perhaps more surprisingly in an era of increasing freedom of information, Parliament does not even have the right to know what these powers are. Ministers have repeatedly answered parliamentary questions about Ministers' prerogative powers by saying that records are not kept of the individual occasions on which those powers are used, and that it would not be practicable to do so.[11] Ministers have also said that it would be impossible to produce a precise list of these powers, and have asserted that, as Rt Hon John Major put it when he was Prime Minister "It is for individual Ministers to decide on a particular occasion whether and how to report to Parliament on the exercise of prerogative powers".[12] Further uncertainty over the scope of Ministerial power is caused by the Ram doctrine,[13] which asserts that Governments have the power to do anything which is not prohibited by statute or the common law.

13. Ministers are certainly accountable to Parliament for the use of prerogative powers just as for things done under statutory or common law authority. But they are only accountable after the event. The United Kingdom is typical of states which permit Ministers to use certain powers without parliamentary approval, but it is highly unusual among democracies in having neither a codified constitution nor having made such express grants of power by the legislature.

Opposition to executive powers

14. In opposition, the Labour Party complained that the situation regarding the Ministerial prerogative was unsatisfactory. In 1989 it said

"[The Labour Party recognises the need] to ensure that all actions of government are subject to political and parliamentary control, including those actions now governed by the arbitrary use of the Royal Prerogative to legitimise actions which would otherwise be contrary to law. [The party reaffirms its] intention to review the Royal Prerogative and to identify particular areas of government activity which should be regulated by statute or excluded from its protection".[14]

15. In reviewing Ministerial powers in 1993 the party said:

"It is where power is exercised by government under cover of royal prerogative that our concerns are greatest… Here massive power is exercised by executive decree without accountability to Parliament and sometimes even without its knowledge".[15]

16. The Labour Party highlighted the ratification of treaties and going to war as two key areas which raised special concerns. In 1994 Jack Straw MP went further, writing separately that:

"[t]he royal prerogative has no place in a modern western democracy… [The prerogative] has been used as a smoke-screen by Ministers to obfuscate the use of power for which they are insufficiently accountable".[16]

The Liberal Democrats, too, have made clear their support for reform.[17]

Parliamentary scrutiny of prerogative powers

17. Many of our witnesses told us that Ministers' exercise of particular prerogative powers needed more rigorous parliamentary accountability and scrutiny. We now consider this evidence, examining the arguments in relation to some of the most important powers.

Going to war

18. Several witnesses considered the power to go to war to be the most significant of the prerogative powers. Despite recent experience of parliamentary involvement in decisions on military action, they believed Parliament's influence should be increased.

19. Rt Hon Lord Hurd of Westwell told us that he was "much exercised" by the approach taken by the Government to the war in Iraq. He believed that modern conditions demanded that any major military action should have explicit parliamentary approval:

"thinking of the position of individual members of our armed services going to war, we should only go into major conflict with a very strong measure of authority behind the government's decision. In the case of Iraq, we tried and failed to get the obvious authority, which was that of the Security Council of the U.N. Obviously lots of people who normally go along with this did not and there was a strong body of public opinion which was also against it. Therefore, it seemed to me that in that case it was essential that your House should have a debate and vote".[18]

20. Lord Hurd felt that "there should at least be a convention" that "where there is a substantial exercise involving sending people to kill and be killed on behalf of the country, then that should be with the consent, prior or at any rate immediate, of the House of Commons". He believed that when it voted on the Iraq conflict "the House of Commons was actually doing its job". He continued: "you could put that on a statutory basis", although he identified possible difficulties in defining a "major conflict" in any legislation.[19]

21. Rt Hon Tony Benn was more strongly persuaded of the need for legislation, calling for a statutory requirement for Ministers to consult Parliament in cases of conflict and advocating a measure along the lines of the United States War Powers Act.[20]

22. Rt Hon William Hague MP concurred, sketching the recent parliamentary history of British military interventions. He saw the 2003 Iraq vote as "given to the House of Commons as a kind of act of generosity by the Government for which we had to be grateful at the time". Pointing out that there was no such substantive vote over the Kosovo conflict, he suggested that, in these cases, government goodwill was not enough: "I think that actually should be laid down in an Act of Parliament or in the Standing Orders of the House …the power to commit troops to action needs codifying, so that parliamentary approval is required before it takes place or as soon as possible thereafter if the circumstances do not permit such a vote to be taken beforehand".[21]

23. He called for a measure that was "simple and flexible" to ensure that the House was able to discuss whether it should give its approval for military action. He was, however, concerned that a comprehensive War Powers Act on the American model would find itself "overtaken by events" because "an international situation will arise in the next 20 years that is entirely different from anything we have ever experienced—and we would find such an act did not cater for it".[22]

Treaties

24. Treaties are another important category of overseas commitments for which Ministers need no formal parliamentary approval. Under the Ponsonby rule the Government lays before Parliament any treaty requiring ratification at least 21 days before ratification is effected. Yet the rule does not require that either House should debate the measure. Treaties are no longer restricted just to high diplomacy and security. They can involve, for example, vital economic matters with profound effects on Britain and the world, including agreements between the United Kingdom and organisations such as the World Trade Organisation and the IMF.

25. Lord Lester of Herne Hill was among those who believed that treaties should be given more systematic parliamentary scrutiny:

"treaties reach into every nook and cranny of our lives. It is, I think, anomalous that Parliament has almost no role in the process of ratification of important treaties and it is done entirely under the prerogative".[23]

Where a treaty changes UK law (as with many European treaties[24]), parliamentary scrutiny is required, but Lord Lester lamented the absence of similar provisions for other treaties.

26. Mr Hague called for "an agreed system for parliamentary approval of international treaties", suggesting that "a new parliamentary procedure needs to be devised, with hearings before a select committee or special standing committee followed by a vote on the floor of the House of Commons to approve or not approve a treaty, and with the possibility of reasoned amendment but not detailed amendment".[25]

Civil service and machinery of government

27. The management of the Civil Service is carried out by Ministers under prerogative powers, regulated by Orders in Council that can be amended, supplemented or withdrawn without parliamentary approval. We have recently published a Report explaining our view that this is no longer an appropriate state of affairs and containing a draft civil service Bill. We therefore see civil service issues as something of a special case among the prerogative powers we examined. The Government has regularly promised to consult on civil service legislation, and our inquiry found that there was widespread agreement that early action is required to enshrine the values of the service in statutory form. Following the publication of our draft Civil Service Bill, the Government announced that a draft Bill would be published in the current Session of Parliament.[26] In this sense, our proposals for the civil service fall into the familiar category of pragmatic and gradual parliamentary encroachment on the scope of the prerogative.

28. Mr Hague went further, arguing that Parliament should, like the US Congress, be asked to approve all major Government reorganisations:

"the Wilson government, the Heath government, and the Blair government, more recently, have implemented major changes to the structure of Whitehall: abolishing some government departments, merging others. To my constituents in rural North Yorkshire, the creation of DEFRA in 2001 was as important an event in the way they are served by the government of the day as the passage of most legislation. I believe that should have parliamentary oversight, should require parliamentary approval, and that a bill should have to be passed through the whole of Parliament to reorganise the machinery of government".[27]

29. Mr Hague recognised that lengthy debate (of the kind that occurred when the US administration created the new Department of Homeland Security) would thus be required. He was, however, entirely content with the prospect of such debate, explaining:

"It is a major disincentive to reorganise things, of course, creating such a rule, but that, I believe, would be no bad thing, since most such reorganisations are hugely expensive and a substitute for policy-making rather than an aid to it".[28]

We also note that, in Canada, with a parliamentary system very close to our own, the approval of Parliament is required before government reorganisations.

Public appointments

30. In previous reports, we have made clear our view that Parliament should play a much more effective role in the most important public appointments, which Ministers make using prerogative powers. In particular, we are attracted to the idea of hearings in which select committees could question successful candidates for major appointments as to their fitness for the post .[29] Included in a current Bill on executive powers introduced in the House of Lords by Lord Lester are proposals for a statutory public appointments commissioner and a public appointments committee.

Passports

31. Passports are granted and revoked by Ministers using prerogative powers. Lord Lester saw this as having important implications for human rights:

"it seems to me entirely anomalous that the right to freedom of movement, which is a fundamental right, should be subject, at least in theory, entirely to the prerogative, unregulated by Parliament".[30]

The honours system

32. Honours are currently awarded as a matter of prerogative. In view of the recent debate about the honours system (stimulated in part by the Committee's publication of the papers which resulted from a Government review of 2001[31]) we have decided to undertake a separate, detailed inquiry into that system. A number of witnesses have already called for greater public involvement and independent scrutiny of the honours system, which would in itself reduce the scope of the Ministerial prerogative in that area. We intend to produce a separate report on this subject later in the year.

The Privy Council: "the cloak that covers"

33. Mr Hague vividly described the Privy Council as "the cloak that covers" a variety of important activities. Mr Hague, himself a Privy Counsellor, told us that he believed that many of the prerogatives exercised through the Council "should be subject to the democratic control of Parliament".[32]

34. He saw little point in using the Privy Council "cloak" in many cases, including the establishment of groups of privy counsellors to examine telephone tapping and other security matters: "I think those groups are groups of people with Executive responsibility who happen to be privy counsellors, rather than needing to be privy counsellors". He said "it would make no practical difference" if such groups simply met as groups of Ministers without such cover.[33] Recent weeks have seen renewed interest in the powers, functions and status of Privy Counsellors.[34] We intend to return to this issue later.

1 Unfinished Business?Ministerial Powers and the Prerogative:An Issues and Questions Paper (PASC Press Notice No 12, 20 May 2003). Back

2 Reasons for this are rehearsed by Sebastian Payne, "The Royal Prerogative" in S. Payne and M. Sunkin (eds.), The Nature of the Crown (1999), pp 77-110. Back

3 Introduction to the Study of the Law of the Constitution (10th ed., 1959), p 424. Dicey's definition is similar to that of Blackstone and thus excludes 'powers' which derive from the principle that the Crown has all the capacities of an individual, eg the power to enter into a contract. Such a power is sometimes described as a 'prerogative' power. Back

4 HC 642-i Back

5 Lord Williams of Mostyn, the then Leader of the House of Lords, produced a similar list after the Committee's issues and questions paper had been published: see his a parliamentary answer: 649 HL Deb 40 (WA) (11 June 2003). Back

6 These are considered further below: see respectively paragraphs [25] and [34]. Back

7 See First Report of the Committee on Standards in Public Life, Cm 2850, May 1995 Back

8 These include The Ministerial Code: Improving the Rule Book. HC 235-I (2000-01) and more recently Ministerial Accountability and Parliamentary Questions, 9^thReport, HC 1086 (2001-02). Back

9 Government by Appointment: Opening Up the Patronage State, HC 165-I (2002-03). Back

10 A Draft Civil Service Bill: Completing the Reform, HC 128-I (2003-04) Back

11 HC Deb, 18 Nov 2002, Col 19W Back

12 HC Deb, 1 Mar 1993, Col 19W Back