Memorandum from Professor Robert Blackburn, PhD, LLD
In response to the request of the Committee for me to give evidence on the white paper and draft Bill on The Governance of Britain—Constitutional Renewal (Cm 7342, March 2008) with particular reference to the royal prerogative powers, my views are
1. Reform of the royal prerogative enjoys near universal support, including across the front benches of the three main political parties.[6] I welcome The Governance of Britain initiative launched by the Prime Minister on 3 July 2007, now taken further in the white paper and draft Constitutional Renewal Bill presented to the Commons on 25 March 2008. I have conducted a great deal of research and writing on constitutional and parliamentary practice, and been a long-standing advocate of the need for reform of the Crown prerogative powers.[7]
2. I have the following comments and reservations to make about the draft Bill and other related proposals moving forward under the Prime Minister's The Governance of Britain initiative. Some are of a general nature about the process of reform being adopted, and others address the reform of particular prerogative powers.
The ad hoc approach of the Government
3. I believe the ad hoc approach which the Labour Government has adopted towards its constitutional reform objectives generally since 1997 is unfortunate. This is not conducive to a joined-up constitutional process. For this reason, I would have preferred to see a more comprehensive approach adopted towards reform of the royal prerogative. I believe there is a general mood across the political parties and in the country that the Government is not going far enough and is moving too slowly in its present constitutional reform agenda.
The form and drafting of the Bill
4.1 Is it the Executive (the Crown) or Parliament which should be the legitimising authority for executive action in the British state? I believe there should be a clear answer to this question.
4.2 Furthermore, principles of constitutional importance should be expressed clearly if citizens are to feel any sense of ownership. In other words, constitutional law carries a powerful symbolic and educative value in the political process, and is not simply the domain of lawyers versed in extracting meaning from tortuously expressed and heavily qualified statutory provisions and regulations.
4.3 In my view, the draft legislative proposals should clearly indicate that Parliament is, or will become, the source and legitimising body for the current executive powers under consideration, including armed conflict and treaty-making.[8] However, the terms of the draft Bill and white paper would imply that 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. In the case of war powers, they are not even constitutionally enshrined in statute.
4.4 "Henry VIII" clauses[9] are particularly obnoxious in constitutional Bills. These allow the Government to legislate by way of a one-stop non-amendable parliamentary process, often timetabled by the Government when few Members will be present. There is a heavy onus on the Government to make the case for the "Henry VIII" clause in the draft Bill at clause 43, allowing ministers to amend such an important constitutional Act by way of statutory instrument. Its reasons should be closely scrutinised by the Joint Committee on the draft Bill.
4.5 Since the Government is not proceeding in a comprehensive fashion towards reform of the royal prerogative, the statute book would be neater and more accessible if there were separate statutes, entitled for example Attorney General (Role and Functions) Act, Civil Service Act, and Treaties (Parliamentary Approval) Act. Presumably it is now too late to change this, so the forthcoming Constitutional Renewal Act will proceed with an ad hoc diverse selection of five subjects.
The process of constitutional law reform
5. Government initiatives on parliamentary reform are prone to being too executive minded. The independence, work and authority of the Joint Committee set up to examine the draft Bill and recommend amendments will be crucial to the long-term success of these reforms in terms of strengthening parliamentary control over the Executive.
Concomitant constitutional changes
6. The success of prerogative reform especially on war powers and treaties will also largely depend on wider reforms to buttress the reality of the shift in power away from the Executive to Parliament. Measures to ensure full and proper information is provided by the Government in advance of its prerogative actions will be essential to Parliament being able to assess and form a view. The scrutiny and reporting work of Select Committees will be vital, and some strengthening in membership matters and clarity over jurisdiction would be welcome. The excessive use of parliamentary management techniques by the Government Whips' Office, notably time allocation and three-line whips, should be reversed.
War powers resolution
7. The net effect of the proposed parliamentary resolution on war powers will allow the Government to retain the initiative and considerable control over how and when Parliament examines and approves executive decisions to enter into armed conflict. The resolution provides that it is for the Prime Minister rather than, say, the Speaker on representations from the Defence Committee, to decide when the debate and vote takes place.
8. If no retrospective approval is to be required under the parliamentary resolution, where the Executive proceeds to armed conflict without advance approval from the Commons, then in my view some positive requirement for a Select Committee inquiry and report to the House should be written into the terms of the resolution.
9. Under the Government proposals for a parliamentary resolution, it is the House of Commons that is vested with the power of approval, not jointly or severally with the House of Lords. The Government proposes a scrutiny reserve for the Lords instead, enabling Second Chamber members to express individual and collective opinions which may or may not be influential in the Commons.
10. However, in my view an elected Second Chamber should have a special role to play over public business of fundamental importance to the nation, which would include armed conflict and treaty-making, with concomitant powers of delay or veto.[10] For this reason and others, I should prefer to see war powers regulation in the draft Bill or other primary legislation.
Ratification of treaties
11. On the drafting of clause 21, condition 4 allowing for MPs to think again could have been phrased more clearly; and I would have preferred clearer emphasis on the authority of Parliament over treaty-making.[11]
12. Of greater concern in terms of parliamentary procedure is whether 21 days is long enough for proper deliberation and scrutiny of the draft treaty (whereas in my view three months would be more appropriate); and whether the requirement for an explanatory memorandum to accompany the draft treaty should be written into the statute.
Wider review: dissolution of Parliament
13.1 The Prime Minister has said he wishes to seek the approval of the Commons before any future dissolution of Parliament. This matter has been referred to the Commons Modernisation Committee, chaired by a Cabinet minister, indicating its sensitivity as a subject to the Government.
13.2 It seems unlikely the Prime Minister will wish to diminish his freedom of action over setting the general election date, and the governing majority can be relied upon to support a motion from the Prime Minister on dissolution. Indeed, a rejection by the Commons would be tantamount to an expression of no confidence in the Prime Minister, which itself by convention is an occasion for dissolution.
13.3 The Government's detailed proposals on dissolution, which the Justice Secretary told the House of Commons on 25 March 2008 had been lodged with the Modernisation Committee, have still not been made publicly available to comment on. When they are, I will be preparing a written memorandum for the Modernisation Committee, which with that Committee's consent I will also send to this Committee.
13.4 However, any measure of reform emanating out of this initiative is likely to be welcome. At the very least, the House of Commons will be the forum to hear the public announcement and news of its pending demise first. In recent practice, conventional courtesies have been dispensed with and Prime Ministers have delivered news of a forthcoming dissolution and the election date direct to the press, leaving MPs to hear the news along with the general population.
Joined up constitutional reform
14.1 The issue of dissolution is a good example of how joined up constitutional change could work effectively. In my view, a new constitutional Act should provide for the life of Parliament, with both Houses being kept in permanent existence. General elections to the Commons could take place at fixed four yearly intervals (subject to a proviso for earlier dissolution in a prescribed crisis situation), with newly elected Members taking up their seats on an appointed day shortly after each election.
14.2 Such a scheme would have two related advantages. First, if the Second Chamber is to be directly elected under forthcoming plans for its reform, it would create the option for the Chamber to be composed by a rotating system of direct elections, removing any question of rival mandates with the Commons. Second, it would remove the political vacuum that currently exists between the dissolution and meeting of Parliaments during election campaigns, in case for any emergency reason Parliament needed to be recalled.
14.3 In present circumstances, however, it seems unlikely that a coherent constitutional programme pulling together the various individual reforms taking place will occur. This, as I have commented above, I believe to be a mistake for the future stability of the constitution.
April 2008
6 The Labour Party in 1993 published policies to reform the royal prerogative in its A New Agenda for Democracy: Labour's Proposals for Constitutional Reform, endorsed by its party conference, but this section of the report was dropped by the leadership in late 1996, the year prior to Labour coming to power. The Liberal Democrats in their 2005 election manifesto backed parliamentary control of the prerogative powers, including a War Powers Act and a Civil Service Act. The Conservative Party's Democracy Task Force in 2006 recommended prerogative reform in An End to Sofa Government and Power to the People, with David Cameron the previous year promoting the idea of fixed term Parliaments to replace the prerogative power of dissolution. Back
7 Relevant publications include Robert Blackburn and Raymond Plant, "Monarchy and the Royal Prerogative", in Blackburn and Plant (eds.), Constitutional Reform: Labour's Constitutional Reform Agenda (Longman, 1999); Robert Blackburn and Andrew Kennon, Griffith & Ryle on Parliament: Functions, Practice and Procedures (2nd ed., 2003); Robert Blackburn, The Crown and the Royal Family, Vol. 12(1) Halsbury's Laws (Butterworths, 4th ed. 1998); Robert Blackburn, King and Country: Monarchy and the Future King Charles III (Politico's, 2006); Robert Blackburn, Towards a Constitutional Bill of Rights for the United Kingdom (Pinter, 1999); Robert Blackburn, "Prorogation or Adjournment before a Dissolution of Parliament", Public Law (1987) 533; Robert Blackburn, "The Dissolution of Parliament: the Crown Prerogatives (House of Commons Control) Bill 1988", The Modern Law Review (1989) 837; Robert Blackburn, The Meeting of Parliament: A Study of the Law and Practice relating to the Frequency and Duration of the United Kingdom Parliament (Dartmouth, 1990); Robert Blackburn, The Electoral System in Britain (Macmillan, 1995), chapter 2: "The Timing of General Elections". Back
8 For example French constitutional law that provides, "A declaration of war must be authorised by Parliament", and "Treaties . . . may be ratified or approved only under an enactment". Back
9 A provision which enables primary legislation to be amended or repealed by subordinate legislation, being named after the Statute of Proclamations 1539 which gave King Henry VIII the power to legislate by proclamation. Back
10 See Robert Blackburn, "The House of Lords", in Blackburn & Plant (eds), Constitutional Reform: The Labour Government's Constitutional Reform Agenda, op. cit. Back
11 For example, "No treaty concluded by the Government shall be binding on the United Kingdom unless (a) the treaty is laid before Parliament, and (b) within three months after it has been so laid, each House of Parliament by resolution authorises the Government to give consent for the United Kingdom to be bound as a party to the treaty". Back
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