3 More power to Parliament?
69. The draft Ministers of the Crown (Executive Powers) Bill that we published in 2004 would have transferred substantial power from the Executive to Parliament:
by allowing the armed forces to take part in conflict only if participation had been approved by both Houses of Parliament, either in advance or, in urgent cases, retrospectively within seven days.
by requiring more important treaties to be approved by both Houses of Parliament before ratification.
by requiring rules for the issue and revocation of passports to be approved by both Houses of Parliament.
70. The Government's proposals in the same areas are more modest, especially compared with the bold language used by the Prime Minister in July 2007, when announcing "a new British constitutional settlement that entrusts more power to Parliament and the British people".
71. The Government has decided ("while not ruling out legislation in the future") to provide for oversight of conflict decisions by the House of Commons through a detailed parliamentary resolution. Except in urgent or secret casesas determined by the Prime Ministerand except in operations led by Special Forces, the approval of the House of Commons would be obtained for decisions to commit the armed forces to conflict overseas. The approval of the House would not be sought retrospectively for urgent or secret operations.
72. The terms of the draft resolution are such that essentially it is left to the Prime Minister alone to determine the information on which the House would take its decision, and to decide what information should be made available in those cases where no parliamentary decision was sought. He could, for example, decide not to provide any information if to do so would in his opinion "prejudice ... the United Kingdom's international relations". In effect, the Prime Minister is made the "guarantor of the probity" of this part of the constitution. Peter Hennessy suggested to us that "in the City that would be called 'insider trading'":
If you are a Prime Minister you think in your head you have a special insight into the world and the dangers the world and the country is facing - Eden in 1956, Blair in 2003 - but they are the last people in the world who are going to be in a fit state of mind to judge, I think, what is proper for Parliament to have and what not; it is asking too much for a human being who is in a state of hyper anxiety to do that, and I think that is the single greatest weakness in what the Government has brought forward.
73. This is a delicate area. Military operations often rely on surprise and secrecy for their success. It would be foolish to establish a parliamentary safeguard which imperilled this. To be of any value, however, the safeguard does need to need to act as an effective political check on a Prime Minister considering committing forces without the support of Parliament. A Prime Minister should not be able to choose whether or not to seek the support of Parliament based on political expediency; nor should he be able to present information to Parliament in a way which is partial or subjective, leading Members of the Commons perhaps to support a conflict which they might not support if more information was available to them.
74. We are concerned that the terms of the resolution as drafted leave too much discretion in the hands of the Prime Minister. We would be more reassured if there were independent endorsement of information provided by the Prime Minister on a conflict, and of any decision that a conflict was too urgent or too secret to allow a prior debate and vote in the Commons. One option might be for this endorsement to come from the cross-party Intelligence and Security Committee. This Committee already has access to information, "disclosure of which", as the Government admits, "would be gravely damaging to the national interest and could put individuals at risk".
75. We also are not convinced by the Government's arguments against the House holding a debate and vote on an urgent conflict once it was already under way. It is notable that all but one of the respondents to the Government's own consultation "thought that the Government should seek retrospective approval from Parliament if it had deployed troops for reasons of urgency or secrecy". The Government is concerned that "there could be some very serious and undesirable consequences of a failure to gain parliamentary approval for an operation which was underway", namely "to call into question the credibility of the UK's use of force, our international relations and crucially, the safety and morale of the UK Forces". This is the price of democracy, and is a risk that Prime Ministers should have to weigh up before taking the extraordinary step of entering into a conflict without a prior mandate from the House of Commons.
76. In fact, the House already has the power to refuse to vote the money necessary to pursue a conflict: this would have the same effect feared by the Governmentto call into question the credibility of the UK's use of force. An explicit vote on retrospective approval of a conflict decision would have at least the advantage of enabling the Prime Minister to secure a clear democratic mandate for his decision. He might otherwise find that he is held entirely personally responsible if the military engagement were to prove unpopular or were to fail in its objectives.
77. Peter Hennessy made two further forceful points in his evidence to us:
i. that the full legal advice of the Attorney General on conflict decisions should be made available to Parliament"make sure that, unless there is very good reason not to, the full opinion on the legality of the war is given you, not some shrivelled inadequate summary".
ii. that Parliament's role in conflict situations should be enshrined in statute, rather than in a resolution"if the rule of law does not apply to war, what is the point of it applying to almost anything else because it is the most dramatic, and drastic in many cases, act a State can take".
78. Michael Wills put the Government's counter-argument to the first of these suggestions:
I think it is clear that any lawyer, the Attorney General or whoever, knowing that their full legal opinion following the logic of their argument all the way through, is going to be put in full in the public domain, not necessarily as we all know happens treated objectively and faithfully in the public domain, could well end up being inhibited. It could have what we call a chilling effect on the advice.
What is clear, and what all parties seem to agree, is that there must be a "full, frank statement of the legal basis" for military action. The contradiction we see is in how a statement can be full and frank, but yet less full and frank than the Attorney's verbatim legal advice (else why not publish it?). One person's "full and frank" may be another person's "shrivelled inadequate summary". We suggest that the Joint Committee on the draft bill may wish to explore further if and how it might be possible to ensure that a genuinely full and frank statement of the legal basis for a conflict decision can be published without revealing the Attorney General's full legal advice to the Government. The publication of the advice could well be the most straightforward solution.
79. We agree with the principle of Peter Hennessy's second point, but can also see that action under a statute on war-making powers (unlike under a parliamentary resolution) would be open to challenge in the courts. We can see why the Government and the military would not wish to risk having the basis for any and every future conflict decision pored over by the justice system. A parliamentary resolution may, for the moment at least, be the pragmatic way forward, as a first step towards establishing a legal principle for parliamentary involvement in conflict decisions.
80. We have one final thought on this area that the Joint Committee may wish to take forward. It would be instructive to test the Government's proposed procedure and the alternatives by using some recent conflict decisions as case studies and imagining how the Prime Minister of the day might have involved Parliament if the Government's draft resolution had been in existence at the time.
81. Part 4 of the draft bill concerns the ratification of treaties. Essentially, the Government proposes to formalise the 'Ponsonby Rule', under which treaties are normally laid before Parliament for 21 sitting days before ratification. There is also provision in the draft bill, however, for ratification of a treaty to be delayed if the House of Commons resolves that it should not be ratified.
82. The Government does not propose that there should be a debate and vote on every treaty, or indeed on any treaty. It would be for Members to demand a vote, and for the Government, if willing, to find the opportunity for this vote to take place.
83. Once again, there are exceptions to the standard procedure:
Certain classes of treaty would not be covered by the procedure, either because the Orders in Council which implement them are already subject to a vote (eg double taxation agreements) or because an Act of Parliament already provides that they may not be ratified without a further Act of Parliament (eg treaties to increase the powers of the European Parliament). These exemptions give us no cause for concern. However, two other kinds of exemption deserve closer consideration.
Under clause 22 of the draft bill, "if the Secretary of State is of the opinion that, exceptionally, the treaty should be ratified without the conditions ... having been met", the treaty could be ratified without being laid before Parliament, or before 21 sitting days had elapsed.
If the House of Commons were to vote that a treaty should not be ratified, the Secretary of State could lay a statement indicating that he "is of the opinion that the treaty should nevertheless be ratified and explaining why", following which the House would have a further 21 sitting days in which to vote once again if it wished to insist that the treaty should not be ratified (clause 21 (5)). The Secretary of State could then lay a further statement, and the procedure would be repeated once again, or many more times, until either the House or the Secretary of State gave way (clause 21 (6)).
84. The Government's commitment to transferring power from the Executive to Parliament in this area has apparently waned since July 2007, when the Prime Minister spoke of "put[ting] on to a statutory footing Parliament's right to ratify new international treaties". As we have shown, the draft bill would instead give Parliament a right to object to the ratification of treaties, but only if the Government decides to provide the opportunity for Parliament to object; and would then allow the Government to overrule any objection Parliament might make. This part of the draft bill thus establishes a very weak form of parliamentary safeguard, which, if it proves uncomfortable, the Government can short-circuit anyway.
85. In most other countries, Parliaments hold considerable powers over the making of treaties. For example:
In the United States, the President may only make a treaty with the concurrence of the Senate by a two-thirds majority.
In France, an Act of Parliament is required before the President may approve or ratify peace treaties, commercial treaties, treaties or agreements relating to international organisations, those that commit the finances of the State, those that modify provisions which are matters for statute, those relating to the status of persons, and those that involve the cession, exchange or addition of territory.
86. There are no exceptions to these provisions in these countries. Parliamentary approval must always be gained before a treaty can be ratified. This leads us to question the value of clause 22 of the draft bill, and the Government's suggestions that there may be rare cases in which delaying the ratification of a treaty could be detrimental to the national interest. Why should it be open to the Secretary of State to ratify a treaty without meeting a very slight obligation to Parliament, when this option is not available to his international counterparts, where the parliamentary requirements to be met are much stronger?
87. Treaties are not like wars, where the ability to take a decision instantaneously can make a real difference to success. Treaties generally take a long time to negotiate, and the ratification process in other countries can take years to complete. 21 days seems like very little time for parliamentary scrutiny and a possible vote, as it is; there are very few circumstances indeed in which it might be necessary to do without this short period of parliamentary consideration. The Government has provided examples of occasions on which the Ponsonby rule has not been followed in the past: not all of these seem to have been genuinely urgent cases. It certainly does not seem right to us that it should be for the Government alone to decide whether to circumvent its obligations to Parliament. A safeguard that can be ignored at will is no safeguard at all. Other leading democracies do not allow their Governments to avoid their obligations to Parliament at their sole discretion. At the very least, the bill should either (a) define the circumstances in which a treaty might need to be ratified without giving Parliament 21 days in which to consider it, or (b) make it for Parliament (not the Secretary of State) to waive the 21-day requirement. We also invite the Joint Committee to consider whether 21 days offers adequate opportunity for proper parliamentary scrutiny of complex treaties.
88. The procedure proposed following a vote against ratification of a treaty is also suspect. The proposal seems to be that a Secretary of State could repeatedly ask the House of Commons to revisit its decision. This is constitutionally dangerous territory. If there is a debate and vote on a treaty, we assume that the Minister will have made his best arguments for the treaty in the course of that debate. He should not be allowed to second-guess the Chamber. If the House of Commons rejects a bill, the Minister cannot come back with the same bill a few days later, saying 'here is why I think this should become law despite you'. The House also has a long-standing rule that the same question should not be put to it twice in the same parliamentary session. We see no reason why that rule should be cast aside in this case.
89. If the House of Commons votes that a treaty should not be ratified, the Secretary of State should respect this view, and the House should not be asked to consider the same question again before the next parliamentary session. Clause 21 of the draft bill should be amended accordingly. It may be of some comfort to the Government to consider that debates and votes on treaties are likely in any case to be few and far between.
90. Passports are issued and revoked by Ministers using prerogative powers. We welcome the Government's decision, reported in the White Paper, "that it should remove the prerogative in relation to passports" and that it "has decided in principle that it will introduce comprehensive legislation on the procedures for issuing passports".
91. We regret, however, that provisions were not included in the draft bill, and encourage the Government to make progress in this area. It is now more than four years since we identified passports as a part of the royal prerogative in urgent need of transfer to the statute book. The Government has proposed "that draft legislation should be published for consultation before it is introduced to Parliament". We recommend that the Government should announce the timetable for a consultation on passport legislation before the summer recess.
Wider review of the royal prerogative
92. The draft bill that we published in March 2004 would have required Government to lay before Parliament a statement of all prerogative powers. As we explained at the time:
there can be no effective accountability without full information. Because Parliament does not know what Ministers are empowered to do until they have done it, Parliament cannot properly hold government to account.
Albeit four years later, we are delighted that the Government has now decided to conduct a scoping exercise of the prerogative powers, to consider the outcome of this work, and to launch a consultation on next steps. The exercise is not altogether straightforward, as the Minister of State in the Ministry of Justice told us, "because some legislation either expressly or impliedly repeals a prerogative and it is sometimes not altogether clear whether the prerogative still in fact exists technically". We trust that the results of the scoping exercise of the executive prerogative powers will be completed and published as soon as possible. The exercise may well reveal areas of the prerogative which would benefit from further statutory provision.
More power or status quo?
93. The proposals in the draft bill and white paper that we have examined would not, as the Prime Minister suggested last July, create "a new British constitutional settlement that entrusts more power to Parliament and the British people". They certainly do not involve the Prime Minister and Executive "surrender[ing] or limit[ing] their powers" to any meaningful degree. What is very welcome is the Government's acknowledgment that it is inappropriate for the Executive to wield power which it has never been given by Parliament, but which it has retained from the time when monarchs wielded absolute power. The Government's proposals would effectively seek Parliament's permission to continue with something akin to the status quo. As one of our witnesses has put it,
"there is not really a firm emphasis upon the principle that Parliament should own these particular powers or should be the authority for these executive powers being exercised" ... "the government still wishes to retain its authority under the ancient theory of the Crown, simply imposing qualified procedural requirements in the exercise of these powers".
We have identified loopholes in the proposals, which would allow the Executive to bypass at their discretion even prior parliamentary scrutiny of their decisions. These loopholes need to be removed or, at the very least, tightened so that it is not for the Government alone to decide when it can use them.
94. Rather than the status quo, however, we would have preferred to see Parliament and the people entrusted with real power, as promised by the Prime Minister. A perhaps unintended effect of placing prerogative power on the statute book without giving Parliament a role in how it is exercised is that it will become subject to scrutiny and decision, not by Parliament or by the people, but by the courts.
95. If the House of Commons should find the proposals inadequate, the House of Lords is likely to have even more cause for concern. The Government would see the Lords fulfilling an advisory capacity only both for conflict decisions and for treaties: "just a sort of talking shop". This pre-empts a final decision on the role of the House of Lords, and may need to be revisited in due course. It is difficult if not impossible to pursue a coherent agenda of constitutional renewal in a landscape where the form and role of one of the main featuresthe House of Lordsremains undecided.
74 HC Deb 3 July 2007, c 815 Back
75 Q 71 Back
76 Q 51 Back
77 Cm 7342-I, para 235 Back
78 Cm 7342-I, para 208 Back
79 Q 51 Back
80 Q 51 Back
81 Q 176 Back
82 For more information on the Ponsonby rule, and further background on the parliamentary scrutiny of treaties, see the Second Report from the Procedure Committee, Session 1999-2000, HC 210. Back
83 HC (1999-2000) 210, para 13 Back
84 Cm 7342-I, paras 159-160 Back
85 Q 75 [Professor Robert Blackburn] Back
86 The Governance of Britain - War powers and treaties: limiting Executive powers, Cm 7239, paras 148-155 Back
87 Erskine May Parliamentary Practice, 23rd Edition, p 388 Back
88 Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, para 59 Back
89 Cm 7342-I, para 246 Back
90 Q 210 Back
91 Q 49; Ev 9, para 4.3 [Professor Robert Blackburn] Back
92 Q 77 [Professor Robert Blackburn] Back