Explanatory notes on the bill
General
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.
F
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.
G
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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