Memorandum by Mr David Gladstone (MPP
The Royal, or Crown, Prerogative is essentially
the residue of the monarchy's medieval and absolute power. The
extent of this residue has proved hard to identify because it
has never been spelled out in any legal document. Lawyers therefore
tend to define it in terms of what it is not, meaning those
powers that Parliament has stripped away: dramatically in 1688
and progressively over the next 300 years. Simultaneously, most
of the residual powers have been transferred or "delegated"
to H. M. Governments (though it would be more accurate to say
that they have been appropriated by successive Prime Ministers).
In the process "Crown" has for most
purposes come to mean "government" rather than "monarch"
and it is the delegated powers that matter to-day. They include
most notably the power to declare war, to conduct foreign policy,
to dissolve Parliament, to regulate the Civil Service and to make
public appointments. The Queen's so-called "personal"
prerogatives (which for purposes of this paper will be described
as the "Royal Prerogatives") range from rights over
sturgeon and swans at one end of the scale to the appointment
of Prime Ministers and refusal to dissolve Parliament at the other.
All these prerogative powers survive in the
form of gentlemen's agreements or, in legal parlance unwritten
conventions. They are important elements in the wider unwritten
constitution, helping to regulate the delicate balance of power
between Monarch, Parliament and Government. Like all gentlemen's
agreements, they depend ultimately on gentlemanly behaviour and
good faith. That faith was maintained through two world wars,
an abdication, the revolutionary introduction of the welfare state
and accession to the EEC. It broke down only in the 1980's when
the Prime Minister of the day grew impatient with unwritten conventions
and began to test the bounds of government power, including delegated
prerogative power. It was the realisation that an unwritten constitution
provided no sure defence against a determined "elective dictator"
that triggered the formation of Charter88 with its call for a
written constitution. The declared desire of the present Prime
Minister to follow in Mrs Thatcher's footsteps prompts a fresh
look at the uses and abuses of the Prerogative.
While researching the Crown Prerogative for
Charter88 I found that many leading authorities admitted to being
baffled by it. Some regarded it as of only marginal importance,
in that over the centuries Parliament had taken over most of the
powers through legislation and the 1985 GCHQ case had established
that the exercise of justiciable prerogative powers would be subject
to judicial review.
However, the more I learned the more convinced
I became that the Prerogative remains central to the way Britain
is governed to-day, both symbolically and practically. Most of
the powers may have been chipped away over the centuries, but
those which are left go to the heart of government and are regularly
exercised. In the words of a leading barrister, "they remain
a vital source of government power."
The paper I wrote in 1997 (Annex A) concluded
that these powers were not just anachronistic but fundamentally
anti-democratic and should be placed on a statutory footing. There
is general agreement (outside government circles) that British
governments are insufficiently accountable to Parliament in the
exercise of their normal statutory powers (in the 1995 Fire Brigades'
Union case Lord Mustill justified the need for judicial supervision
by reference to Parliament's "falling short" in its
oversight of the performance of the Executive).
The Executive's attempts to avoid such oversight altogether through
the exercise of prerogative powers point to an endemic unwillingness
to address the issue.
Indeed, for those hoping that this hang-over
from a pre-democratic age will wither on the vine, the omens are
not good. In the course of failing to reform the House of Lords
in his first term, Mr Blair used his prerogative powers to create
dozens of new peers. The Human Rights Act, by putting discretionary
Orders-in-Council on a par with primary legislation, has "blurred
an established boundary concerning the legal sources of the British
defying the "principle of abeyance" which has been accepted
In preparation for the invasion of Iraq, Mr Blair deployed a large
part of the armed forces to the Gulf without consulting, or needing
to consult Parliament. The government has continued to regulate
the Civil Service under prerogative Orders-in-Council, treating
it as its personal fiefdom.
The courts may continue to clip the executive's
wings (in defiance of ministerial threats), but they cannot stop
it passing new laws aimed at clawing back lost ground and many
prerogative powers are "of a kind the courts will not concern
What's to be Done?
There is a price to be paid for our habit of
obfuscation. Our claim to be a fully-fledged modern democracylike
our right to impose democratic values on for example the Middle
Eastis undermined by reliance on an anti-democratic source
of authority for ourselves. Governments which claim to be modernising
every other aspect of British society and battling with the "forces
of conservatism" will lack credibility so long as they go
on "harking back to the clanking of medieval chains of the
ghosts of the past" in Lord Roskill's phrase.
If it secures no other British national interest, the Iraq "war"
has awoken millions of British subjects to their powerlessness
in the face of these ghosts.
There is an emerging cross party consensus in
favour of abolishing prerogative power. Parliament now needs to
consider the modalities and consequences of doing so. In the following
section I list the principal powers, outline the problems associated
with their exercise and suggest ways of dealing with the consequences
of their abolition. In conclusion, I offer some thoughts on the
thorny problems associated with the Human Rights Act and Sovereignty.
Problem. The Foreign Secretary is empowered
to negotiate agreements with other governments without Parliamentary
scrutiny. Under the so-called "Ponsonby Rule", the Foreign
Secretary lays the concluded treaty in the Library of the House
of Commons for 21 days after which it is automatically ratified
by means of Order-in-Council. This avoidance of democratic scrutiny
is peculiar to this country.
Action. Since the "Ponsonby Rule"
is a convention, it could possibly be annulled by a simple announcement
by the Foreign Secretary of the day. But devising and putting
in place new procedures would presumably require legislation.
A "Treaties Act" could be very short and uncontroversial.
The government should publish a consultation document for Parliament
The Prerogative right to treat with foreign
governments is not democratic, but it is not conspicuously anti-democratic
and there is an argument for leaving well alone. Foreign affairs
are a special case and many democratic countries, France for example,
have arrived at similar arrangements. Our tradition of regular
parliamentary foreign affairs debates ensures that the Prime Minister
and Foreign Secretary are made well aware of Members' views.
The continuing existence and use of prerogative
powers does however have wider foreign policy implications which
ought to concern MP's (and indeed the government). The spreading
of democratic values in the developing world has become a cardinal
aim of British foreign policy. But, as noted above, such preaching
smacks of hypocrisy so long as our own system of government is
in part anti-democratic.
2. PUBLIC APPOINTMENT
The General Problem. This is one of the
most contentious pieces of business left over from the 17th century
struggle between Crown and Parliament. The abuse of patronage
which bedevilled 18th century politics has never gone away. The
rise of the "Quangocracy" in the Thatcher and Major
years gave political patronage a new lease of life as government
Ministers admitted to selecting their political friends to run
these unaccountable bodies. The then Opposition parties reacted
with indignation, but the change of government in 1997 has led
only to reversed charges of "cronyism". Prime Ministers
of all stripes have continued to create peerages for political
(i) The biggest problem concerns Parliament
itself. Nowhere else in the Western world does the Head of Government
appoint members of the Legislature; indeed, in most democratic
nations the idea would seem too fanciful to entertain. Proper
reform of the Upper House will require democratising the method
of choosing its members.
(ii) Honours. The British Honours system
is hopelessly entangled with political patronage. In the case
of peerages it is also anti-democratic. Having concluded that
it is inherently wrong in the 21st century to enter Parliament
through "taking the trouble to be born", we ought equally
to reject the notion that entry may be "earned" through
subscription to party funds or long and faithful service to a
(iii) The Prime Minister's role in appointing
the Archbishop of Canterbury stands out as a particular curiosity.
Its historical origins are clear enough and The Queen's continuing
position as Head of the Anglican Church ensures an intimate bond
between Church and State. But in a secular and multi-faith society
it is increasingly hard to justify political involvement in thisor
any otherecclesiastical appointment.
(i) There are a number of proposals in the
field. The creation of one or more Public Appointments Commissions
has been widely touted, but there would be no advantage in abolishing
direct Prime Ministerial patronage only to replace it by patronage
at one remove via his "cronies", however Great and Good.
The public will rightly feel they should have some say in the
process. On the other hand, the public have also shown themselves
allergic to elections, and the only alternative may be for Commission
members to be indirectly elected from existing elected bodies.
The Upper House should be largely elected and membership divorced
from the Honours system.
(ii) An independent Honours Commission should
advise The Queen. The government should propose names but not
(iii) The Church of England should be made
responsible for its own appointments, seeking The Queen's agreement
as a matter of formality.
Problem. A vast amount of political capital
has been invested by the present government in effective delivery
of public services. But delivery depends ultimately on a well-trained,
well-motivated and independent civil service working in partnership
with teachers, doctors and other professionals. As it is, British
civil servantsunlike their counterparts in France and Germany
in particularare not independent. The Civil Service is
regulated by Orders-in-Council issued by a Minister under delegated
prerogative powers. Its members consequently enjoy no statutory
rights (or indeed existence), owe no allegiance to the public
and answer solely to the government of the day. It is therefore
very hard for them to resist Ministerial instructions to perform
essentially political acts. Paradoxically this lack of independent
standing actually makes it harder for them to command the confidence
of their political masters. The Scott Report revealed them to
be inadequate guardians of the public interest. A succession of
administrative fiascos has exposed their lack of professional
expertise. Government Ministers have blamed them, unscrupulously
but without fear of riposte, for continuing restrictions on Freedom
The general problem has been compounded in recent
years by the proliferation of Special Political Advisers with
ill-defined roles and powers. There is widespread agreement that
something needs to be done to regulate these irregulars, but insufficient
appreciation that it is pointless to try to resolve the particular
problem while failing to address the general one.
Action. Almost all interested parties
agree that a Civil Service Act is long overdue. The Major government
and two Blair governments have paid lip service to the idea. Most
of the necessary preparatory work has been done and it only requires
government commitment, so far sadly lacking. Apart from clarifying
the status and role of civil servants, the Act should provide
for the creation of an appeal Body; either a strengthened, statutory,
Civil Service Commission or a new Standing Commission as proposed
by Prof. Norman Lewis.
Problem. In the run-up to the invasion
of Iraq, many British subjects were surprised to learn that their
elected leader could take the country into war, declared or undeclared,
defensive or pre-emptive, legitimate or unnecessary, without needing
to consult Parliament. I pointed this out in a letter to The Times
on 18 September 2002 (Annex B) and the Attorney-General subsequently
confirmed, in reply to a Question by Lord Hooson on 19 February
2003, that "The decision to use military force is, and remains,
a decision within the Royal Prerogative and as such does not,
as a matter of law or constitutionality, require the prior approval
of Parliament." Similar powers to determine the national
interest in extremis are vested in French Presidents, but in France
they are set out in a written constitution. In no other western
country does the head of government enjoy such a privilege. Like
all prerogative powers, this one harks back to the medieval notion
of the Crown as absolute sovereign. Contemplating the invasion
of Iraq, Mr Blair will have felt like Henry V, musing on the burdens
of Kingship on the eve of Agincourt. But many voters, if not MP's,
would nowadays like to share the burdens.
The "War prerogative" includes the
power to prevent trade with the enemy and to intern enemy aliens.
These powers have ramifications which could well be of interest
Action. Such was the strength of feeling
over the invasion of Iraq that the Prime Minister was eventually
forced to submit his decision to a vote in parliament. It may
be that the precedent having been set, no future Prime Minister
will feel able to go to war without first seeking Parliamentary
approval. But Mr Blair deployed the armed forces to the Gulf without
needing to consult anyone, and thereby made war almost inevitable.
Creating yet another unwritten convention relating to the strict
declaration of war would not be very helpful (in the Iraq case
it is not even clear whether war was ever declared). This issue,
perhaps above all, needs to be resolved in the context of a written
constitution defining the extent of executive power.
Problem. The Prime Minister, both on
his own account and through the Leader of the House and the Whips'
Office, exercises excessive control over the supposedly democratic
half of the Legislature. The present Prime Minister has high-lighted
the issue by barely concealing his lack of interest in Parliamentary
In the view of most constitutional experts,
Government in the UK is more important than Parliament. The situation
has evolved independently of prerogative issues, but it is thanks
to the prerogative that the Prime Minister retains the initiative
vis-a"-vis Parliament. In particular he alone determines
the date of General Elections. This anti-democratic power is taken
for granted in this country, but is unique among Western nations.
It epitomises the unequal relationship between Crown and Parliament,
governors and governed, and signals that in the game of politics
the dice are loaded in favour of the governing party, often at
the expense of the national interest.
On the face of it, the Prime Minister's unfettered
choice of Ministers is not controversial: in virtually every democratic
country it is the Head of Government who chooses his ministerial
team. But in Britain the P.M. can and does appoint people who
do not sit in the House of Commons and cannot therefore be called
to account by the whole house. He also appoints many more junior
ministers than are found in other countries, not because they
are strictly necessary, but as a means of ensuring the loyalty
of a significant number of his back-benchers. The practice is
of relatively recent date and has become an important part of
Action. It would be pointless, if not
impossible, to deal with these anomalies on their own. Rather
they need to be addressed in the context of root-and-branch reform
of both Houses of Parliament to introduce real checks and balances,
Committee structures etc. Fixed-term parliaments would be a central
provision in a written constitution.
Problem. It is a constitutional anomaly
that the Executive, in the person of the Lord Chancellor, not
only appoints judges but confers special privileges ("Silk")
on practising lawyers of his choosing (and can still, in theory,
sit on the bench).
Action. An independent Commission should
appoint judges. The Lord Chancellor appears minded to abandon
the practice of government-appointed silks.
7. THE ROYAL
Problem. The monarch's "personal
prerogatives" are by convention limited to
(i) the appointment of prime ministers
(ii) the refusal to dissolve Parliament in
certain circumstances and
(iii) immunity from prosecution in the courts.
On the face of it, these prerogatives are as
objectionable in terms of democracy as those delegated to the
Prime Minister and his Ministers (following the Burrell trial
there has indeed been some questioning of the monarch's continuing
immunity). In fact they are different in kind and the problems
associated with (i) at least can be turned on their head by asking
whether if the power were abolished the resulting problems might
not be less acceptable than the status quo. Whatever the constitutional
arrangements, there has to be somebody above the fray who steps
in when the game is suspended and the players are temporarily
off the board.
Action. Until or unless there is overwhelming
public or political demand for change, it would be best to leave
things as they are. The position could most easily be regularised
through a written constitution.
The Human Rights Act
In Section 21 (1) (f) (i) of the Human Rights
Act 1998 (the HRA), Parliament defined primary legislation so
as to include Orders-in-Council made in the exercise of Her Majesty's
Prerogative, thus not just protecting but actually expanding the
scope of what Lord Parmor described in 1920 as the government's
"uncertain administrative discretion".
The government's aim in framing the bill was clearly to limit
the courts' ability to review the exercise of prerogative powers
by giving Ministers discretion to ignore any declarations of incompatibility
made by either the domestic courts or the European Court of Human
Rights. If a declaration of incompatibility is made, even by the
European Court, a Minister of the Crown "may" make such
amendments to the offending piece of legislation as he considers
necessary to remove the incompatibility (Section 10) if he considers
that there are "compelling reasons" to do so. Under
Section 5 the Crown has even reserved the right to intervene,
where a court is considering whether to make a declaration of
incompatibility and has the right to be joined as a party, thus
hinting at a novel use of prerogative powers.
These victories over the courts may prove hollow.
British courts appear to be precluded by the HRA from reviewing
prerogative Orders-in-Council, but it is unclear how the ECHR
will view such transparent attempts to circumvent judicial oversight
of the human rights regime in this country, ie whether the executive's
actions will be judged to fall within the "margin of appreciation"
afforded to domestic bodies by the European Court in interpreting
the rights set out in the HRA as they see fit. The absolute nature
of certain rights set out in the HRA is circumscribed by carve-outs,
phrased so that an ostensible breach of a right is rendered unoffensive
to a reviewing court if carried out under the authority of "law"
which is also "necessary in a democratic society". It
is not clear whether a manifestation of a prerogative power would
be construed as "law" in this sense. A successful case
brought to Strasbourg by eg an aggrieved British civil servant
against his employer, the "Crown", could call in question
not just Section 21(1) (f) (i) of the HRA but the whole discretionary
system on which it rests.
If the ECHR were to rule in such a case that
the exercise of Crown Prerogative power is incompatible with fundamental
human rights, Her Majesty's government would be confronted with
an invidious choice: to try to argue that human rights law has
nothing to do the other activities of Her Majesty's government
a line intelligible no doubt to the Red Queen but not to
many othersor to accept that unaccountable powers rooted
in the concept of divine right have no place in a democratic society
committed to upholding the rights of the individual.
However, it is hardly satisfactory to leave
the resolution of such important constitutional matters to an
unelected body outside the UK. In theory Parliament has the last
word, by holding Ministers to account for any incompatibilities
of their actions, but we have seen how difficult that will be
One of the most telling responses to Bagehot's
English Constitution was delivered by Humpty-Dumpty. "The
question is", he said, "which is to be masterthat's
all." 130 years on his question awaits an unequivocal answer.
Bagehot divided the constitution into "dignified" and
"efficient" parts but neither he nor anyone since has
been able to say exactly where sovereignty lies. The "Crown
(or Queen) in Parliament" has survived as a formula because
rather than in spite of its ultimate meaninglessness: it has not
so far been in anybody's interest to clarify it. There has been
no constitutional crisis severe enough to test it (although the
Abdication came near). But abolishing the Prerogative will force
the issue into the open.
There are really two issues: who (or which)
has the authority to abolish something that by definition pertains
to or emanates from the Sovereign? And who (or which) will be
All legal authorities agree that Statute Law
(which can be seen as the legal expression of the democratic will)
trumps the Prerogative (the "unreasonable survival of despotism"
as one authority describes it)
when the two conflict. But cutting ever finer slices off a piece
of salami, as Parliament has been doing for 300 years in the case
of the Prerogative, is one thing: throwing the last scrap into
the bin is another.
MPs and lawyers will need to designate and empower
the new sovereign authority which would take over the prerogative
powers listed above. It will be no straightforward task. The "Crown"
is an ambiguous term meaning the monarch, the government, the
state or the public interest depending on context. It harks backwards
when what is needed is a completely new approach.
Only a written constitution can square all the
circles. It would put an end to the uncertain administrative discretion
which threatens to embroil the UK in fruitless arguments with
Strasbourg; it would provide for the checks, balances and separation
of powers we lack at present; it would define the relationships
between executive, legislature and judiciary which, partly through
being ill-defined, are becoming mired in bad-tempered bickering;
it would provide in itself a focus, if not bedrock, of uncontested
sovereignty and national solidarity, as the American Constitution
and the German Basic Law have succeeded in doing. It would also
be the best way of dealing with the Monarch's personal prerogativesif
Parliament decided to preserve them in something like their present
2 D B Squires, (2000) 116 Law Quarterly Review, p.
R. v. Secretary of State for the Home Department, ex
p. Fire Brigades Union (1995) p. 567 Back
P Billings and B Pontin, (2001 Spring) Public Law, p. 21 Back
Attorney-General v. De Keyser's Royal Hotel Back
Wade and Forsyth, Administrative Law (8th ed, 2000) p. 349 Back
Council of Civil Service Unions v. Minister for the Civil Services
(1985) p. 417 Back
Attorney-General v. de Keyser's Royal Hotel, p.
H V Evatt, The Royal Prerogative (1987) p. 9 Back