Select Committee on Public Administration Written Evidence


Memorandum by Mr David Gladstone (MPP 04)

THE ROYAL, OR CROWN, PREROGATIVE

Introduction

  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."[2]

  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[3]). 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 Constitution,[4] defying the "principle of abeyance" which has been accepted since 1920[5]. 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 themselves with"[6].

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 democracy—like our right to impose democratic values on for example the Middle East—is 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[7]. 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.

1.  CONCLUSION OF TREATIES AND CONDUCT OF FOREIGN POLICY

  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 to debate.

  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 AND HONOURS

  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 reasons.

Particular Problems

  (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 party.

  (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 this—or any other—ecclesiastical appointment.

Action

  (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 dispose.

  (iii)  The Church of England should be made responsible for its own appointments, seeking The Queen's agreement as a matter of formality.

3.  REGULATION OF THE CIVIL SERVICE

  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 servants—unlike their counterparts in France and Germany in particular—are 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 of Information.

  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.

4.  DECLARATION OF WAR AND DEPLOYMENT OF THE ARMED FORCES

  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 to Parliament.

  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.

5.  APPOINTMENT OF MINISTERS AND DISSOLUTION OF PARLIAMENT

  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 affairs.

  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 government patronage.

  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.

6.  ADMINISTRATION OF JUSTICE

  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 PREROGATIVES.

  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.

CONCLUSION: SOVEREIGNTY AND HUMAN RIGHTS

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"[8]. 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 others—or 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 in practice.

Sovereignty

  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 master—that'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 master thereafter?

  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[9]) 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 prerogatives—if Parliament decided to preserve them in something like their present form.

David Gladstone

May 2003





2   D B Squires, (2000) 116 Law Quarterly Review, p. 572 Back

3   R. v. Secretary of State for the Home Department, ex p. Fire Brigades Union (1995) p. 567 Back

4   P Billings and B Pontin, (2001 Spring) Public Law, p. 21 Back

5   Attorney-General v. De Keyser's Royal Hotel Back

6   Wade and Forsyth, Administrative Law (8th ed, 2000) p. 349 Back

7   Council of Civil Service Unions v. Minister for the Civil Services (1985) p. 417 Back

8   Attorney-General v. de Keyser's Royal Hotel, p. 568 Back

9   H V Evatt, The Royal Prerogative (1987) p. 9 Back


 
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