The scheme for a Bill
26. In its Issues and Questions Paper the Committee
suggested two possible models for a general statute about Ministers'
27. One model, Model A, would be an Act which expressly
confirmed the prerogative powers listed in a schedule to the Act,
and which expressly abolished all others. It would be for Parliament
to decide which, if any, executive powers should be put in the
schedule, and which should be left out of it and which would be
abolished as a result of that deliberate omission. It would also
be for Parliament to surround with any appropriate statutory safeguards
the powers which were retained. The Queen's constitutional prerogatives
would be among those to be preserved by the Act.
28. The alternative model, model B, would be much
more radical. It would include a "sunset clause" for
outmoded powers. Such an 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.
29. Legislation along the lines just outlined would
ensure that the representative Parliament provided authority for
executive powers, rather than the royal prerogative. Any powers
inappropriate in a modern democracy would be abrogated. Appropriate
statutory safeguards for the future use of such powers would be
enacted by Parliament.
30. On further reflection, however, a risk has become
apparent in framing legislation in quite those terms. By legislating
against a deadline, there would be the danger that errors might
be made. It would be unfortunate if a power or powers were to
be changed by legislation only for it to become clear later that
the change was not quite right and that correcting legislation
31. For that reason, therefore, it is suggested that
reform should be achieved in two stages. In the first, clear and
precise information would be obtained from the Government about
executive powers within a time specified in the Bill (say six
months), and that information would be considered in a structured
fashion in Parliament. Appropriate legislation should then be
framed. This would take longer than if an Act were passed which
itself either continued or abrogated powers within a time limit
set in the Act. But then the royal prerogative has existed for
over a thousand years; Ministers have relied on it for executive
authority for at least 150 years; taking a little extra time to
get the new law right would be prudent and reasonable.
32. Legislation containing a sunset clause might
well, in any event, commend itself less strongly to the Government
than a Bill which aimed at the goals already adopted by the Committee
but which reached them in a rather more cautious way.
33. Another factor to take into account is the desirability
of achieving reform by the simplest legislative methods.
It would be possible to go to the trouble of converting the relevant
prerogative powers into exclusively statutory powers. But it would
be simpler to leave them on a prerogative basis while surrounding
the use of them with appropriate legislative conditions and safeguards.
What really matters is not the technical legal form of these powers
but that Parliament's consent be obtained for the continuance
of them, and that their exercise be subject to proper parliamentary
scrutiny and authority and other safeguards. In establishing all
that, Parliament's approval of the existence and use of the powers
would be expressly granted. The democratic deficit would be expunged
in the simplest way. We would arrive at much the same place as
planned by the other forms of the Bill mentioned earlier, but
by a different route. Indeed, what is now advocated builds on
the idea floated in Model A of the Bill in the Issues and Questions
The essence of the Bill
34. What, then, is suggested is a Bill which would
do the following.
a) It would cause Parliament to be supplied with
authoritative information in a statement by the Government about
Ministers' executive powers; this would be required within six
months of the passage of the Bill. This would be a new statutory
duty cast on the Government.
b) The Bill would set out a statutory mechanism
under which Parliament would consider that statement, initially
through a committee. Given the importance of the project and the
central role envisaged for Parliament in it, a joint select committee
might be the appropriate means to do this. It was envisaged in
the Issues and Questions Paper that principles should be enunciated
to guide the use of Ministers' executive powers. Such principles
would be included in the Bill for the guidance of the committee.
c) The Bill would provide for Parliament to consider
the report (or reports) from the committee about the powers. Parliament
would be advised by the committee about, for example, how some
executive powers should be reformed. Draft legislation would be
required from the committee.
d) The Bill would enact statutory safeguards,
to take immediate effect, for the use of a number of the most
important executive powers about which the most disquiet has been
expressed. Those areas are the use of the armed forces, the ratification
of treaties, and the issue or cancellation of passports. The techniques
used in the Bill in relation to those three areas would provide
a possible template for later parliamentary work on other executive
e) That is the broad scheme of the draft Ministers
of the Crown (Executive Powers) Bill which is set out below. The
Bill is followed by Explanatory Notes.
51 Parliament and the Use of Force, Standard Note SN/IA/1218
(25 February 2003). Back
HC 642-i, Q 6. Back
For example, Mr Hague (HC 642-i, Qs 6, 27), Mr Tony Benn (HC 642-i,
Q 1), and Lord Lester of Herne Hill (HC 642-ii, Q 51). But Lord
Hurd of Westwell favoured codification in a constitutional convention
(HC 642-iii, Q 54). Back
644 HL Deb 1139 (19 February 2003). Back
My thanks are due to Professor Vaughan Lowe of the University
of Oxford for his help in arriving at that definition. Back
Mr Adam Ingram, MP, Minister of State, Ministry of Defence at
400 HC Deb 443-4 (WA) (25 February 2003). See also R v.
Secretary of State for the Home Department, ex p Northumbria
Police Authority  1 All ER 556. Back
Mr Ingram, ibid. Back
For a summary of the law and practice see House of Commons Select
Committee on Procedure, "Parliamentary Scrutiny of Treaties",
2nd Report, HC 210 (1999-2000). Back
See, e.g., Baroness Chalker at 566 HL Deb 159 (WA) (1 November
For example, Lord Lester of Herne Hill (HC 642-ii, Qs 51, 76),Mr
William Hague, MP (HC 642-i, Qs 2, 31). Lord Hurd of Westwell
was broadly satisfied with the status quo (HC 642-ii, Q 75). Back
This paragraph is based on the answer given by Lord Filkin, then
Minister of State, Home Office, at 638 HL Deb 106 (WA) (25 July
There are technical legal problems involved in legislating about
areas covered by the prerogative. See, for example, S.A. de Smith
and R. Brazier, Constitutional and Administrative Law (8th
ed., 1998), pp 254-5. Back