The role and powers of the Prime Minister

Written evidence submitted by Rt Hon Alex Salmond MSP, First Minister of Scotland

Thank you for your letter of 24 January inviting the Scottish Government to submit written evidence to your inquiry into the role and powers of the Prime Minister. I am happy to contribute some thoughts from a Scottish perspective.

The question of whether the role and powers of the Prime Minister of the United Kingdom should be set down in statute is ultimately a matter for the UK Parliament. In terms of general principle, however, I have no hesitation in commending to the committee the codified approach already taken by Westminster in the Scotland Act 1998.

As the attached paper indicates, the extent to which the functions of the First Minister are defined in the 1998 Act is not exhaustive. The First Minister has a wide range of responsibilities. Many of these have a statutory basis, but some relate to prerogative powers or otherwise exist by convention. Nonetheless, the office of First Minister is one which has a clear statutory basis and this in turn has enabled much of the broader structural framework – within which the Scottish Government as a whole functions – to be set out transparently and accessibly in a single constitutional document.

That reflects what I would regard as a necessary feature of constitutional arrangements in a modern European democracy. It is certainly in keeping with the founding principles of the Scottish Parliament, developed by the Consultative Steering Group. These emphasise the fundamental importance of access and power-sharing as parliamentary and constitutional values. By extension, the sharing of power between the institutions of the state and the ordinary citizen necessarily implies a willingness on the part of such institutions to expose and disseminate information about their own internal structures and rules. A system which operates solely or principally on the basis of unwritten and informal conventions, accessible only to insiders , must inevitably risk failing that important democratic test.

By way of example, I suspect most impartial observers would consider it surprising for system-critical rules surrounding the government formation process to be defined by civil service guidance shortly in advance of a closely-fought general election. Yet this is precisely what happened in 2010, with the Cabinet Office finding itself in the unenviable position of setting out the constitutional arrangements which would apply in the event of a hung parliament. That observation in no way calls into question the quality of the work done by the Civil Service in clarifying an important matter, and in doing so in an important environment of public uncertainty and media speculation. But it is surely unacceptable for the constitution to be generated, or at least written down, in what is essentially an ad-hoc manner and without wider consultation. Citizens deserve rather better.

That example, to which your committee has itself referred in its recent report Lessons from the process of Government formation after the 2010 General Election (HC 528), provides a helpful illustration of the advantages of codification and transparency. A comparable difficulty would not arise in the Scottish context because the rules are explicitly defined in the Scotland Act. The manner and circumstances in which a First Minister is nominated and appointed to office, and in which he or she may leave or be removed from office , are not in any doubt. The formation of the government is similarly transparent, with statutory provision governing the appointment and functions of government ministers.

To that extent it is reasonable to think Scotland as having a largely-codified constitution, which happens to be expressed in the form of an Act of the UK Parliament (and which my Government, as you know, believes should be repatriated). The other devolution settlements operate on a similar basis. In fact, within the UK, only the Westminster system continues to function on an essentially non-codified basis. As you know, that puts the UK very much in the minority in an international context.

There has of course been a greater willingness at Westminster in recent years to consider opportunities for codification and the adoption of a more transparent approach. To some extent the previous Labour administration explored this territory as part of its Governance of Britain agenda. The current Conservative-led government is seeking to institute fixed-term parliaments.

In that context I cannot avoid remarking that it is simultaneously ironic, inexplicable and deeply regrettable that in seeking to codify this particular aspect of the constitution the UK Government appears to have had no regard to the pre-existence of constitutional provisions regulating the electoral cycle in the devolved jurisdictions. That failure to take account of, or to respect, established constitutional arrangements is suggestive of the persistence of an ad-hoc and uncoordinated approach to constitutional development. That is something which I hope your own committee will monitor closely, with its work providing a stimulus to rather better practice in future.

As I have indicated, not all aspects of governmental, parliamentary and constitutional activity in Scotland are fully-codified. The Scottish Government continues to operate within a wider UK context and some aspects of governmental activity remain uncodified. Thus, for example, one of my functions as First Minister is to advise Her Majesty in relation to the making of appointments and the exercise of the Royal prerogative. Certain of those functions are referenced directly by the Scotland Act, or have a statutory basis elsewhere, whilst others have not been formally codified. In that sense, Scotland continues to retain some of the flavour of Westminster tradition.

That is, incidentally, also true of some familiar features of governmental structures, such as Cabinet and the doctrine of collective responsibility, both of which exist by established convention but are not formal components of the machinery of government specified in statute. The important point I would want to make, however, is that, once again, such non-codified activity is facilitated and made more transparent because it can be located clearly within the overarching codified structures provided by the Scotland Act.

The attached paper provides some further detail in relation to some of the functions of the First Minister, including in particular those which are not explicit in the Scotland Act. I trust this will prove of assistance to your committee in taking forward its deliberations.

21 March 2011