Select Committee on Public Administration Fourth Report

Explanatory notes on the bill


A  The Bill is in four Parts. Part 1 defines the terms used in the Bill and states its purposes. Part 2 sets out a statutory scheme under which Parliament will be informed of the principal executive powers enjoyed by Ministers and under which draft legislation will be produced about them. Part 3 surrounds three of those executive powers with immediate statutory safeguards. Those powers concern the use of the armed forces, the ratification of treaties, and passports. Part 4 deals with miscellaneous matters.

Part 1 Interpretation and Purposes

B  Placing the interpretation section at the beginning of a statute helps the reader by providing definitions which can be recalled as the reader progresses through the Bill. Given the difficulties of definition inherent in the concept of the royal prerogative, cl 1 contains definitions used throughout the Bill.

C  Cl 1 is the interpretation clause.

a)  Cl 1(1) requires that the Act must be construed according to cl 1.

b)  Cl 1(2) contains the definitions of phrases used throughout the Bill. Two are of particular note.

i.  "Executive powers". This phrase is adopted in the Bill to cover the royal prerogative powers used by or on behalf of Ministers. The phrase is defined as meaning those powers (and only those powers) which, by virtue of the prerogative, can be used by or on the advice of Ministers and which enable Ministers to act without other authority. Cl 1(2) thus excludes from the ambit of the Bill any legal rights enjoyed by the Crown (and indirectly by Ministers) outside the governmental sphere. It excludes from the Bill statutory powers, and common-law powers. It seeks to exclude prerogatives which (for example) underpin the doctrine that the Crown is only bound by statute in certain circumstances.

ii.  "Royal prerogative". No all-embracing definition of this concept is offered in the Bill. Rather, cl 1(2) says that, in the Bill, the phrase "royal prerogative" means those powers and rights enjoyed uniquely by the Crown, and otherwise than by virtue of statute. That formulation seeks to cover only the powers etc. enjoyed in law by the Crown alone ("uniquely"), and thus excludes any powers etc. which the Crown may enjoy in common with any other citizen or legal personality (such as a corporation sole). The definition excludes powers etc. enjoyed under statute, which are not affected by the Bill.

Otherwise, the definitions in cl 1(2) are traditional (such as that of "Her Majesty's Government", or "Secretary of State"), or are borrowed from other statutes (such as that of "Ministers of the Crown": Ministers of the Crown 1975, s. 8(1)).

c)  Cl 1(3) The Bill is concerned with executive authority used by Ministers. It is not intended to disturb royal prerogative powers that are personal to The Queen and which are exercised in Her discretion, "albeit" (as cl 1(3) says) "usually on Ministerial advice". Examples of them are given in cl 1(4), such as the appointment of Ministers, the granting of Royal Assent to legislation, and the prorogation and dissolution of Parliament. Of course, in practice these prerogative powers do enhance the political position of the Prime Minister, and it would be possible to legislate about them. But this Bill does not attempt to do so. Nor does the Bill affect the appointment of the Prime Minister. The Queen's rights are also confirmed in cl 15.

D  Cl 2(1) sets out the purposes of the Bill. This is done in straightforward language, and no further explanation is offered here. Cl 2(2) states that the ways in which those purposes are to be achieved are set out in Parts 2 and 3 of the Bill.

Part 2 Information about and consideration of executive powers

E  Part 2 is an important Part of the Bill because it establishes, in law, how prerogative powers are to be reformed. The Bill requires in cl 3 that information be provided by the Government about Ministers' executive powers. It requires in cl 4 that Parliament consider that information initially through a joint select committee, which will consider whether any changes should be made to those powers, applying a set of principles which are provided in cl 4(4), and requires the drafting of any necessary legislation for the purpose.


a)  Cl 3(1) requires the Secretary of State to make a statement to each House of Parliament of all executive powers. (Any duty cast on the Secretary of State by the Bill may be discharged by the Prime Minister: cl. 14.)

b)  Cl 3(2) explains what must be included in the statement. It will be for the Secretary of State to enumerate each executive power, describing its nature and extent, to outline any existing safeguards which already attach to them, and to refer to judicial decisions, and any statutory references, about them. Although the Bill, in the following Part, takes immediate action over a number of executive powers, they must nonetheless be included in the statement so as to make it comprehensive (cl 3(3)). The statement must be made within 6 months of the passing of the Act (cl 3(4)). Cl 3 aims to provide Parliament with enough information to help it to decide what (if anything) to do generally about executive powers.


a)  Cl 4 explains what Parliament is to do with the statement.

b)  Cl 4(1) provides that the statement would be considered by a joint select committee.

c)  That committee will have the duty under cl 4(2) to consider what changes should be made to the law and practice relating to any of the powers in the statement, and must report conclusions to Parliament together with draft legislation. (Of course, no time limit can be sensibly specified for this stage. Nor—as a result of parliamentary sovereignty—can the Bill require Parliament to act on the committee's report. )

d)  Cll 4(3) and (4) set out principles—which are not meant to be exclusive—to which the committee must have regard when considering the Government's statement. These are self-explanatory. They seek to ensure that the Government could continue, in exceptional circumstances, to act quickly using executive powers in the national interest without prior parliamentary authority,[63] but they also indicate safeguards which should apply more generally.

Part 3 Exercise of specified executive powers

H  Part 3 of the Bill deals with three executive powers. They are to be subjected immediately to new statutory rules ahead of the scheme described in Part 2. The rules in Part 3 would come into effect at Royal Assent. It would, of course, be possible for the operation of Part 3 to be delayed until the Part 2 process had been completed, but the powers embraced by Part 3 have raised concerns over many years and legislation may be considered to be urgent. The powers covered by Part 3 are the use of the armed forces (cll 5-7), the ratification of treaties (cll 8-12), and passports (cl 13).

I  Armed conflict is governed by cl 5.

a)  Cl 5(1) sets out a definition of armed conflict. It does so by applying cl 5 to cases of action which will attract the international laws of war. Thus "armed conflict" is defined as any use of force which gives rise, or may give rise, to a situation of armed conflict to which the Geneva Conventions of 1949 or the Additional Protocols of 1977 apply. Those situations include:

i.  declared war or any other armed conflict which may arise between two or more signatories to the Conventions or Protocols (1949, article 2);

ii.  partial or total occupation of a signatory's territory (ibid.);

iii.  armed conflicts which are fought against colonial domination or alien occupation (1977, Protocol I, article 4);

iv.  a conflict between the armed forces of a signatory and dissident armed forces or other organised groups in its territory (1977, Protocol II, article 1).

Cl 5(1) defines the Conventions referred to, and also defines (for this cl and for cl 7) "Her Majesty's armed forces" by reference to the Army Act 1955, s. 225. That section embraces all of Her Majesty's regular air, military and naval forces, and excludes reserve and Commonwealth forces.

b)  Cl 5(2) prevents any use of executive powers to commit the armed forces to armed conflict without the consent of each House of Parliament.

c)  Cl 5(3), however, disapplies that rule so as to permit the armed forces to use force for their immediate and personal self-defence. Clearly, it would be absurd to impose a rule requiring parliamentary approval in such circumstances. This subclause is restricted to the personal self-defence of Service personnel. It is not intended to cover military action taken in the self-defence of the United Kingdom or any other State.

d)  Cl 5(4)(a) sets out the general rule that resolutions for cl 5(2) purposes must be obtained before the forces participate in armed conflict. It would remain lawful to deploy the armed forces under executive powers anywhere in the world, but they could not be ordered into armed conflict without parliamentary resolutions approving it.

e)  But military action might be urgently necessary before parliamentary resolutions could be obtained. Accordingly, cl 5(4)(b) provides that if it is the Government's opinion that participation in armed conflict action is necessary as a matter of urgency before the resolutions could be obtained, that participation may be authorised by the Government, but it must obtain the resolutions within seven days of the beginning of that action. That time limit should be sufficient, and it would allow Parliament to assemble if it were adjourned or to be recalled if it were in recess. If Parliament were prorogued or dissolved when resolutions were needed, then the rule under cl 5(5) is that they must be obtained as soon as possible.

f)  Cl 6 may be unnecessary. It is unlikely that the United Kingdom will formally declare war again, rather than engage in armed conflict.[64] But cl 6 is included for the sake of completeness. If the Government were contemplating recommending a formal declaration of war to be made under the royal prerogative (which was last done in 1939), cl 6 provides that such a declaration must be approved first by resolutions in both Houses. If a declaration were needed when Parliament was not sitting, the Government could make no declaration until Parliament reassembled and the resolutions were obtained. If Parliament were prorogued or dissolved, the Government would rely on cl 5(5) to commit the armed forces to participate in armed conflict and to obtain parliamentary authority for that as soon as practicable under cl 5(5).

g)  Cl 7(1) places a statutory duty on the Secretary of State to make a statement to both Houses as soon as possible after the armed forces have been used in support of the police in order to preserve or restore the peace. Cl 7(2) explains that cl 7(1) is designed to bite only in cases where the armed forces are deployed on the ground to help the police in cases of feared or actual breakdown in public order which the police cannot deal with themselves unaided, or where action is taken in public to prevent terrorism (through, for example, deploying personnel and tanks at an airport). Cl 7(3) makes it clear that the duty to make a statement does not cover other cases of military support, namely giving information or technical assistance, or help in dealing with particular explosive devices.

J  Cll 8 to 12 place statutory safeguards on the ability of Ministers to ratify treaties.

a)  Cl 8 defines "ratification" and "treaty".

b)  Cl 9 establishes a general rule that Ministers can ratify treaties only in accordance with procedures set out in cll 10 to 12. Generally, those procedures require parliamentary approval for ratification, either by affirmative or negative procedure. This means that the current freedom of Ministers to ratify treaties using the royal prerogative will be limited by the requirement that Parliament approve such ratification. Treaties which do not require ratification are unaffected by the Bill.

c)  Cl 10(1) requires the Secretary of State to lay any treaty which the Government proposes to ratify before each House. Cl 10(2) requires the laying, at the same time, of an Explanatory Memorandum explaining the purpose of the treaty, the Government's reasons for wishing to ratify it, and the likely costs and benefits involved for the United Kingdom.

d)  Cl 10 then distinguishes, in effect, between more important, and less important, treaties. The more important are dealt with in cl 10(3). That clause permits the ratification of specified treaties only after that ratification has been approved by resolution in each House. The important types of treaty covered by cl 10(3) are those which would: affect existing law, or the private rights of people or corporations; lay a pecuniary burden on people in the United Kingdom; or cede any part of the territory of the United Kingdom. Other types of treaty could be added to cl 10(3) by statutory instrument (cl 10(5), (6)(b)).

e)  Cl 10(4) deals with all other treaties which require ratification. Under cl 10(4) treaties not embraced by cl 10(3) (as a more important type of treaty) may be approved without a resolution of each House. But this may be prevented if a resolution praying that the Government refrain from doing so is passed by either House within 21 sitting days of the first laying of the treaty before Parliament. "Sitting days" is defined by cl 10(6)(a). It is envisaged that, provided Parliament has had notice of such a treaty with the opportunity to move a prayer against ratification, most such treaties will be ratified by the Government after the twenty-one day period has elapsed without parliamentary action being necessary.

f)  If the Government believes that, due to exceptional circumstances, ratification of a particular treaty is urgently required, then under cl 11(1) the rules in cl 10 will not apply. Ratification can be effected in that case without parliamentary approval. But this must be reported to each House, together with reasons, as soon as possible (cl 11(2)).

g)  Cl 12 expressly preserves the statutory rule in the European Parliamentary Elections Act 2002, s. 12, that any treaty which provides for any increase in the powers of the European Parliament can only be ratified if such ratification is first approved by Act of Parliament.

K  Cl 13 provides new rules about passports.

a)  It keeps the issue and revocation of passports as a prerogative matter, but adds statutory safeguards.

b)  Under cl 13(1) the Secretary of State can only refuse to issue, revoke or withdraw a passport in accordance with statutory rules. Such rules would be established in a statutory instrument which, under cl 13(2), the Secretary of State must lay before each House within 3 months of the passing of the Bill into law, and it would come into force only following approval in a resolution by each House (cl 13(3)). Pending the adoption of those rules the Secretary of State would continue to act on present law and practice (cl 13(4)).

Part 4 Miscellaneous

L  Part 4 deals with three miscellaneous matters.

a)  Cl 14 provides that any duty cast on the Secretary of State by the Act may be discharged by the Prime Minister. (It may be, for example, that the Prime Minister would want to make the statement about executive powers required by cl 3.)

b)  Cl 15 seeks to underline that the Bill is designed to affect Ministers, rather than the Crown or The Queen personally. The Bill leaves prerogative powers in place. It does not alter the legal basis of those powers. Cl 15 reinforces the point established in cl 1(3). Thus cl 15 states that nothing in the Bill is to be taken to derogate from any rights, privileges, dignities or immunities enjoyed by Her Majesty.

c)  Cl 16 provides for the short title and extent (which is the whole of the United Kingdom, defined in cl 1(2)).

63   An example of that is set out in cl 5(4)(b).  Back

64   See paragraph 8 for the Attorney-General's explanation. Back

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Prepared 16 March 2004