Select Committee on Public Administration Fourth Report

Appendix 1

Paper by Rodney Brazier

Specialist Adviser to the Public Administration Select Committee

February 2004

1. Governments should not have imprecise powers. As a matter of basic constitutional principle the user of a power should be able—and if asked should be obliged—to identify the source of that power and to describe its nature and extent. Ministers should be required to do just that. While constitutional writers have done their best to fill the gaps in our knowledge about executive powers, the burden should be on the Government to explain officially to Parliament and the public what prerogative powers it uses and how it uses them. It could be that there is rather less to worry about than is feared. But the lack of information which surrounds this area of governmental authority itself contributes to concern.

2. Sir Hayden Phillips, Permanent Secretary at the Department for Constitutional Affairs, has supplied the Committee with a note setting out the Government's policy on the prerogative and supplying a (non-exhaustive) list of such powers. But that is no substitute for a formal statement of Ministerial executive powers, formally presented to Parliament, and formally considered by Parliament. Because Ministers in the past have declined even to satisfy the first of those requirements, Parliament should act to insist that this information be produced. Parliament should also put in place a structured statutory mechanism through which it would consider and, if necessary, act on that information. Statutory rules to achieve all that appear in the draft Bill, cll 3 and 4.

Urgent action in three areas

3. It is already clear that a number of executive powers, the general nature of which is well enough known, are unacceptable in the ways in which they can be used by Ministers. These powers concern the use of the armed forces, the ratification of treaties, and passports. Legislation is needed about them so that—at long last—fundamental constitutional principles can be asserted over their use, such as proper Ministerial responsibility and accountability, and appropriate safeguards for the citizen.

Use of the armed forces

4. Committing the armed forces to military action is one of the gravest steps that any Government can take. Military action may be unavoidable and have general support, as in 1939; sometimes, however, it may be controversial, as with the war in Iraq in 2003. The disposition and engagement of the armed forces rest under the royal prerogative with The Queen as Commander in Chief. Her Majesty acts on Ministerial advice on these matters.

5. The Government must be able to deploy and engage the armed forces—sometimes very quickly—without having to comply with laborious legal rules. But in a parliamentary democracy such action ought to have the approval of Parliament at some stage. Of course, no British Government is going to take the country into armed conflict unless it is unavoidable and unless Ministers are reasonably sure that they can carry Parliament with them. Yet parliamentary approval for military action is not required by law. Details of how Governments have actually consulted Parliament since 1939 about military conflicts have been given in a House of Commons Library note.[51]

6. It has been argued that, because the Government obtained prior parliamentary approval for the war in Iraq in 2003, a constitutional convention now requires any Government to obtain parliamentary consent for any future armed conflict, expressed through substantive motions in each House. As with any constitutional convention, however, such a rule would be open to interpretation, and there would, of course, be no legal obligation behind it. As Mr William Hague pointed out to the Committee, any such convention might not be followed by a future Government which faced a close vote, or more uncertain circumstances than existed early in 2003.[52] Witnesses before the Committee favoured new statutory rules.[53]

7. New rules should, indeed, be statutory. The basic rule should be that the armed forces can only participate in armed conflict with Parliament's consent. The Government should be able to act quickly, if necessary, without waiting for such approval, but Parliament's consent should then be obtained within a specified time. Those are the rules contained in cl 5 of the attached draft Bill.

8. War was last formally declared (under the prerogative) by the United Kingdom in 1939. The Attorney-General, Lord Goldsmith, has explained in a parliamentary answer that such a declaration is not necessary before the forces are committed (under the prerogative) to armed conflict.[54] This is because the existence or otherwise of a legal state of war is nowadays irrelevant for most international law purposes. What is important, he said, is the existence of an "armed conflict", which is a question of fact. The draft Bill reflects the Attorney-General's view by referring in cl 5 to Parliament's approval for armed conflict; for the sake of completeness, Parliament's consent would be required under cl 6 for any (however unlikely) formal declaration of war.

9. Provision is made in the Bill for cases when Parliament is prorogued or dissolved when such vital votes were needed: approval would then be required as soon as possible. If Parliament were in recess, it would be left to the usual procedures to cause it to be recalled.

10. How, if at all, should "armed conflict" be defined in the Bill? The definition could turn on whether a particular military engagement was such as to bring into play international law on the laws of war. Those laws displace ordinary national law when they apply. The Geneva Conventions on the laws of war (1949) apply (under article 2) in "all cases of declared war or of other armed conflict which may arise" between signatories to the Conventions. The laws also apply to all cases of partial or total occupation of the territory of a signatory, even if one of the countries in conflict is not a signatory (ibid.). The 1949 Conventions are supplemented by Additional Protocols (1977). The draft Bill, in cl 5(1), gives a definition of armed conflict as being any use of force which gives rise to a situation of armed conflict to which the Geneva Conventions or the Additional Protocols apply.[55] More information about this is given in the Explanatory Notes to cl 5.

11. It would, however, be possible to dispense with a definition and to leave the interpretation of the phrase "armed conflict" to common sense. It is unlikely that there would be any significant disagreement about whether in fact a given situation amounted, or would amount, to a state of armed conflict.

12. It is a matter of judgement whether the deployment of the forces in any international peacekeeping role should be covered by these new statutory rules. Such operations (which would normally fall outside a definition of armed conflict) would generally involve much less overall danger for the forces than would an armed conflict. No provision is made in the draft Bill for peacekeeping operations.

13. On a less dramatic, but nonetheless important level the armed forces can be committed if necessary by virtue of the prerogative to help the civil power—the police—to maintain or to restore public order. This has not been necessary in Great Britain for a long time, although it is well known in Northern Ireland. The procedure which would be followed in Great Britain has been described in a parliamentary answer.[56] A request would go from the police to the Ministry of Defence, which would liaise with the Home Office, and Ministerial authority would be sought for the deployment. Military support is also given for more routine matters, linked to police operations and investigations; the largest category in Great Britain concerns dealing with explosive devices.[57] The armed forces are occasionally deployed to deter acts of terrorism, as was seen with the reinforcement of the police at Heathrow by military personnel for a brief period in 2003.

14. These are necessary powers. But any use of the armed forces to support the police in maintaining or restoring public order or in public displays to counter terrorism are such serious matters that they should be reported to Parliament as a matter of legal duty as soon as possible. Ministers would surely want to do this, and there is no reason why they should oppose the adoption of a legal rule to that effect.

The ratification of treaties

15. Treaties affect many areas of ordinary life. They are no longer confined to high diplomatic or defence matters. Yet parliamentary procedures have scarcely been altered to take account of the pervasive nature of modern treaties. Ministers conclude them in their discretion relying on the prerogative.[58] This gives Ministers a remarkably free hand to conclude international agreements. Parliament has no formal role in treaty-making, or in the approval of the text of treaties—unless a treaty would require a change in English law or the grant of public money, when legislation is necessary. Save for such cases a Minister can bind the United Kingdom to most international agreements by simple signature, or by formal ratification under the prerogative for those treaties which require ratification. About a dozen treaties a year require such ratification.

16. Existing democratic safeguards amount to little more than Ministers taking account of parliamentary and public opinion when negotiating treaties, and Ministers being sure that legislation can be obtained for those treaties that require it. Under the Ponsonby rule the Government lays before Parliament any treaty requiring ratification at least 21 days before ratification is effected, so that there could be parliamentary debate about it. But that rule is non-statutory, and if speedy ratification is needed the rule will be waived; Ministers have declined to say how often that has happened.[59] In any event Parliament cannot amend the text of a treaty.

17. Given that treaties now affect so many aspects of life—including financial transactions, transport, police powers and social security—Parliament should assert itself more than it has to require adequate and timely information to be given to it about treaties and, for the most important types of treaty which require ratification, Parliament should have the legal power to accept or to reject them. Witnesses before the Committee in this inquiry advocated change.[60]

18. The draft Bill—which draws heavily on an earlier version of Lord Lester of Herne Hill's Executive Powers and Civil Service Bill—would put those ideas into practice. The Bill only applies to treaties which require ratification: most international agreements, which are often of a technical nature, would not be affected (cll 9, 10(1)). Perhaps a dozen or so would become subject to parliamentary scrutiny each year. The Bill requires the Government to lay each treaty requiring ratification before each House, together with a written explanation of what it would do, why the Government wants to ratify it, and what its costs and benefits would be (cl 10(2)). That would correct the current situation in which the Government merely lays the text of a treaty requiring ratification, which may be largely incomprehensible to the reader. Such treaties are divided into two groups by the Bill (cl 10(3), (4)). The more important group—including those which would require a change in the law—would need parliamentary approval by the affirmative procedure in each House. The other group would be subject to the negative procedure within 21 days of being laid. The Bill would permit ratification in exceptional cases without parliamentary approval, but subject to proper information being given (cl 11).

19. The impact on parliamentary time of these changes should be limited, but the acceptance of the principle that Parliament must accept important treaties on behalf of their constituents would be most significant. Simple, democratically sound and binding rules of law would replace more complex procedures which currently in effect leave Parliament's opinion on major treaties untested.


20. Passports are issued under the royal prerogative by or on behalf of the Secretary of State. There is no statutory right to a passport, which can be refused or withdrawn at any time.

21. Ministers in successive Governments have pointed out, however, that there are non-statutory rules about denying a passport to a citizen.[61] A passport will be refused or denied only in four cases. In summary those cases are as follow.

a)  Certain minors, whose journey would be contrary to a court order or the wishes of a parent or to specified statutes.

b)  Anyone for whom an arrest warrant has been issued or who is wanted for a serious crime.

c)  Anyone whose activities would make the issue of a passport contrary to the public interest.

d)  Anyone who has been repatriated at public expense, until the debt is paid.

Refusal or withdrawal is considered on the individual merits of a particular case, and action taken by Ministers over passports is reviewable by the courts. Successive Governments have said that this non-statutory system works well.

22. The principal, and simple, objection to that situation is that the citizen's possession of a passport should not depend largely on the exercise of Ministerial discretion based on non-statutory rules devised by Ministers themselves—especially given that those rules have never been approved by Parliament. If the executive is to decide whether a citizen can enter and leave his or her own country then that must be on the basis of law approved by the legislature. The present situation simply looks bad.

23. As a minimum the refusal or withdrawal of a passport should be surrounded by statutory rules approved by Parliament. Such rules might reflect the four cases which have been used by successive Governments. Clause 13 of the draft Bill would give effect to such an approach.

24. It is hard to see why Ministers would resist such a legislative change. It builds on what Ministers say happens already. It would be designed to assert a matter of human rights. Ministers would continue to take action in certain cases, but they could point to parliamentary authority for doing so. The change would also build on the International Covenant on Civil and Political Rights, article 12 of which guarantees freedom of movement from and into this country for its citizens, and on the right of European Union citizens to have a national identification document to enable free movement between EU states. This change would be a further victory for the rule of law.

Other prerogative powers: other legislation

25. Other Ministerial executive powers have been, or are being, earmarked for legislation or other action separately from this inquiry. The ten broad areas of prerogative power identified in paragraph 9 of the Committee's report will have been considered by this Committee or by others. The draft Bill will not duplicate (for example) the Committee's work on a Civil Service Bill.

The scheme for a Bill

26. In its Issues and Questions Paper the Committee suggested two possible models for a general statute about Ministers' executive powers.

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 was necessary.

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.[62] 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 Paper.

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 powers.

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

52   HC 642-i, Q 6. Back

53   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

54   644 HL Deb 1139 (19 February 2003). Back

55   My thanks are due to Professor Vaughan Lowe of the University of Oxford for his help in arriving at that definition. Back

56   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 [1988] 1 All ER 556. Back

57   Mr Ingram, ibid. Back

58   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

59   See, e.g., Baroness Chalker at 566 HL Deb 159 (WA) (1 November 1995). Back

60   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

61   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 2002). Back

62   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

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