Select Committee on Public Administration Fourth Report

Mechanisms for reform

35. Our witnesses therefore produced a range of persuasive arguments for more systematic Parliamentary scrutiny of the Ministerial prerogative on a range of fronts. If we want to take Ministerial accountability to Parliament seriously, the case for reform is unanswerable.

36. The next question concerns the mechanism which might be adopted to bring about that reform. We have considered two broad options:

  • a continuation, or possibly an acceleration, of the current approach, by which individual prerogative powers are made subject to Parliamentary (often statutory) control on a pragmatic case-by-case basis as the necessity for such control is demonstrated; and
  • new comprehensive legislation. We consider below the various forms that this could take.

The case for pragmatism

37. Lord Hurd put to us the case for continued piecemeal and pragmatic extension of Parliamentary control:

"I was brought up on a full diet of Edmund Burke and on the whole I believe the constitution evolves and is best looked at in the light of particular criticisms, particular mischiefs, that can be identified and then change made, rather than examining it on a philosophical basis, which rapidly turns artificial".[35]

38. Lord Hurd suggested that the chief cause of the unchecked growth of Ministerial power was a failure of Parliament, rather than the existence of the Ministerial prerogative: "I do not myself for a moment believe this is because the public believes that prerogative powers exercised by Ministers are racing ahead out of the control of Parliament. I believe that our constituents hold that Parliament has ample powers but its constitution and conduct make it ineffective in using them".[36]

39. He cited a number of individual examples in his own Ministerial experience where powerful practical and political considerations led government to subject the prerogative to much greater Parliamentary scrutiny.

"every now and then a reform, a change, becomes clearly necessary. …two Acts of Parliament which put under statutory power or identity the three intelligence services: the Security Services Act 1989 and the Intelligence Services Act 1994. There were, if anyone is interested, very practical, cogent reasons which persuaded even the prime Ministers of the day, and certainly the heads of the services, that this was a good and necessary move".[37]

40. Lord Hurd said that similar arguments now applied to the proposal for a Civil Service Act and war powers. He summarised his view by saying that: "there are issues all the time but in my view they are essentially practical rather than philosophical".[38]

41. Those opposed to comprehensive legislation also make the practical point that Parliament could become overwhelmed by the task of overseeing such a wide range of actions and decisions.

42. Lord Hurd told us:

"I think that Lord Lester's sketch of his 50 clauses—which, as I understand it, would only be a preliminary act—would occupy both Houses of Parliament for a very long time and would be followed by a whole series of discussions. I just wonder who in this country, outside of a fairly narrow but very talented and conscientious range, would feel better off as a result of that; who would sleep more safely in their beds; and who would think the country was better governed".[39]

43. The present Prime Minister, like his predecessors, is also in the camp of the pragmatists when it comes to the prerogative. When asked if he would introduce legislation to give statutory definition to the powers of the Prime Minister and list the occasions when the prerogative was used, Mr Blair told the House:

"The Prime Minister's roles as Head of Her Majesty's Government, her principal adviser and as Chairman of the Cabinet are not defined in legislation. These roles, including the exercise of powers under the royal prerogative, have evolved over many years, drawing on convention and usage, and it is not possible precisely to define them. The Government have no plans to introduce legislation in this area".[40]

Putting democratic structures in place

44. We saw some force in the arguments of Lord Hurd and others who advocate a case-by-case approach to improved parliamentary scrutiny of Ministerial actions. But we also heard convincing evidence in favour of more comprehensive legislation.

45. Lord Lester set the argument in a broad constitutional context:

"We were all brought up in our unwritten constitution to believe that there were two great principles to our constitution: one was parliamentary supremacy, that the executive was accountable to Parliament rather than to the king or queen; and, secondly, the principle of the rule of law, that public powers should be exercised according to the law. The difficulty about our unwritten, flexible, permeable, part monarchical and part parliamentary constitution is to make sure that those principles apply in practice".[41]

46. Mr Hague also put the general case for a formal framework, telling us that "there is still a vast scope for extending parliamentary control of the royal prerogative".[42] He cast doubt on the notion that a piecemeal approach to legislation was the most effective one, expressing his impatience "one problem with gradualism … it may not actually be sufficient. The other problem with gradualism is that it is not moving at all in some areas".[43]

47. Mark Fisher MP said that legislation could be one way forward:

"the Government ought to make clear and there ought to be a list of what the prerogative powers that presently exist are, and only then can one go on to look at both principles and the distinction between necessary and desirable powers and those that are totally unnecessary for the conduct of government, and then possibly proceed to thinking about a Prerogative Powers Act ".[44]

48. Graham Allen MP argued for much clearer functional divisions between the constituent parts of the constitution, urging (Q 85): "Can we please, in law, define what Ministerial and Prime Ministerial prerogatives are so that we do know the person who exercises the power and the people who have power exercised over them are clear about where that power comes from and are clear about its authority". Mr Allen made an important distinction between "a democratic culture" which he called "our greatest strength in the UK", and "democratic structures" which were not, in his view, so firmly established. He urged the Committee to be "greedy and have the democratic culture and the democratic structures as well". He believed that it was "very important that we consider whether we need an act which also states that the use of prerogative powers, the use of executive power, should in some way be totted up, should be listed".[45]

49. Most of our witnesses, therefore, felt that serious consideration should be given to legislation on the prerogative. This is new constitutional territory, but it is being explored with increasing and welcome vigour.

The options for legislation

50. We do not underestimate the size and delicacy of the task. The prerogative offers much-needed flexibility to government and is a well-established part of the constitution. Ministers need executive powers. They must be able to do most of the things set out in paragraph 9 above, and some of those things have to be done quickly in a complex and dangerous world. It would, therefore, be absurd to suggest that the prerogative should be abolished as an historical anachronism and not be replaced. Parliamentary scrutiny of prerogative powers must not unduly hamper the operation of government, and indeed of Parliament itself.

51. But in the last year or so there have been a number of practical proposals for reform, which have taken the debate on from the generalised 1990s expressions of concern. (paragraphs 14 and 15 above). In April 2003, Parliament First, an all-party group of Members, published proposals which would see "the majority of prerogatives… placed on a statutory footing". A select committee would be set up to review the exercise of the prerogative, and "an official list of the prerogative powers… established and a code of practice developed for their exercise". Only by such action, the group argued, would "the deficiencies in parliamentary scrutiny" be remedied. Urgent reforms were necessary, according to the group, to tackle "the great dangers in our present system and the evident disenchantment with Parliament and politics".[46]

52. The debate has now reached the Upper House in the practical form of a Bill promoted by Lord Lester.[47] Professor Rodney Brazier, the specialist adviser to this inquiry, has also put forward proposals for comprehensive legislation. His paper containing a draft Bill (which owes much to the Bill produced by Lord Lester) is at Appendix 1. It is a major contribution to the debate on the prerogative.

53. Professor Brazier outlines two possible approaches to legislation. In paragraph 28 of his paper he describes an Act that would contain a 'sunset clause' for outmoded powers. It 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".

54. Like Professor Brazier, we are not attracted to this extreme option, because it runs the risk of leaving Ministers without important powers at times when urgent action is required. (See paragraph 30 of his paper) Because there would be a deadline for enacting the legislation, mistakes could be made which could have far-reaching consequences for the workings of government.

55. The alternative option for prerogative reform, set out in Professor Brazier's draft Bill, is both more modest and more practical. It would require government to list the prerogative powers exercised by Ministers within six months of the Act's passing. The list would then be considered by a committee (probably a joint committee of both Houses) and appropriate legislation would be framed to put in place statutory safeguards where these are required. It does not envisage that such safeguards will be needed in every area where the prerogative is used.

56. In a number of areas, and without prejudice to the case for a general act which would ensure that Ministers gave Parliament information about their prerogative powers, some specific early legislative action needs to be taken. Professor Brazier's draft Bill makes provision for this, in three specific areas—the decisions on military conflict, treaties and passports. There are strong arguments in favour of making special provision for all three.

57. In particular, we believe that any decision to engage in armed conflict should be approved by Parliament, if not before military action then as soon as possible afterwards. In these most serious of cases, the decision whether or not to consult Parliament should never be dependent on the generosity or good will of government. A mere convention is not enough when lives are at stake. The increasing frequency of conflict in recent years is proof of the importance of ensuring that, when the country takes military action, Parliament supports the government in its decision. Professor Brazier also makes a powerful case for similar special requirements for early action on decisions on treaties and passports, and we commend it to the government.

58. The arguments for special treatment in other areas are rather more doubtful. For example, Mr Hague makes an interesting case, as we have seen, for obligatory parliamentary approval of changes to the machinery of government.[48] The events of June 2003, when the Government restructured several departments, including that of the Lord Chancellor, vividly illustrate the potential for confusion and controversy. Decisions on the size and functions of departments can have substantial effects on the lives of thousands of people, service users and employees alike. Reorganisations can mean the removal of civil servants from the Service. Governments must therefore explain very clearly the basis for major organisational changes, and account to Parliament for them. Nevertheless a statutory requirement could be cumbersome, potentially embroiling Parliament in questions of strategic management which are best left to Ministers, though we would wish to keep this option under review. In the meantime, our proposed civil service legislation will deal with the questions of most fundamental public interest.

Parliament's right to know

59. A major argument in favour of the approach suggested by Professor Brazier is that Parliament should have a right to know what powers are being exercised by Ministers. As Professor Brazier says, in setting out an important principle, "Ministers should not have imprecise powers".[49] Although we have received from the Government a paper which contains a list of the prerogative powers (which deliberately does not attempt to be exhaustive) this is no substitute for full reporting to Parliament.[50] Above all, we believe that there can be no effective accountability without full information. Because Parliament does not know what Ministers are empowered to do until they have done it, Parliament cannot properly hold government to account.


60. Without prejudice to its response to the Executive Powers and Civil Service Bill now before the House of Lords, the Government should initiate before the end of the current session a public consultation exercise on Ministerial prerogative powers. This should contain proposals for legislation to provide greater parliamentary control over all the executive powers enjoyed by Ministers under the royal prerogative. This exercise should also include specific proposals for ensuring full parliamentary scrutiny of the following Ministerial prerogative actions: decisions on armed conflict; the conclusion and ratification of treaties; the issue and revocation of passports.

61. This is unfinished constitutional business. The prerogative has allowed powers to move from Monarch to Ministers without Parliament having a say in how they are exercised. This should no longer be acceptable to Parliament or the people. We have shown how these powers can begin to be constitutionalised, and in particular how certain key powers can be anchored in the consent of Parliament for their exercise. It is now time for this unfinished business to be completed.

35   Q49 Back

36   Ibid Back

37   Ibid Back

38   Ibid Back

39   Q83 Back

40   HC Deb, 15 Oct 2001, col 818W Back

41   Q51 Back

42   Q2 Back

43   Q6 Back

44   Q55 Back

45   Q85 Back

46   'Parliament's Last Chance', Parliament First, April 2003 Back

47   Executive Powers and Civil Service Bill Back

48   We note that the Ministers of the Crown Act 1975 requires an affirmative resolution of an order providing for the dissolution of a government department, but such formal dissolutions are rare.  Back

49   Q2 Back

50   Press Notice 19, 2002/03 Back

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