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.
Recommendation
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
