The role and powers of the Prime Minister

Written evidence submitted by Dr Eoin O’Malley, School of Law and Government, Dublin City University

My responses to these questions are mainly guided my own research, which is comparative in nature, and less by my knowledge of the UK system, which is more limited.

1. Is there sufficient clarity as to the Prime Minister’s role and powers?
1a. Should the Prime Minister’s role and powers be codified in statute or otherwise?

While in most countries the powers of the prime minister are set out in the constitution, i t is comparatively unusual to have the role codified in statute. I n most countries these powers are codified in the constitution or some basic laws and further limits are placed or powers granted in different statutes . These tend to deal with the architecture of government, which affects how the day-to-day job of prime minister is run, but they do not set out what a prime minister will do in his or her day-to-day life. I n general the role and powers of the prime minister are guided by the circumstances , and the ability to use prerogative powers can vary even though the constitution doesn’t. There is remarkably little variation across countries in the constitutional prerogatives granted prime ministers – which are often limited – but much greater variation in the effective power over policy - making over time and across countries.

While it might be legally pretty to have some codification of the prime ministers’ powers, the reality is that prime ministers are constrained not so much by the limited powers granted them (the UK prime minister’s prerogative powers may be more extensive) , but by political factors. That is not to say the constitution and statute are unimportant, but when a political actor who has the legal right to make a decision is told by a powerful prime minister to do something, the legal right to say no might come to nothing.

So one can set down rules that decisions must be made in cabinet but in effect they may be merely ratified there. How decisions are actually made will be determined by the most powerful members. One can put in place more formal rules but as high-level government decisions are necessarily made in secret and the relationships between the main actors are unequal it will be difficult to ensure that those rules are followed or have any effect . One could not see a minister take a case against a prime minister for having cabinet discussions leaked to the media. It seems to me that a constitutionally guaranteed role for the senior civil service might be a good place to start.

2. How has the role of the Prime Minister changed in recent years?
2a. How has this process of change been brought about and controlled?

The main role of the prime minister is to oversee, organise and direct the business of government. Prime ministers set legislative and policy priorities ; co-ordinate and direct the government, chair government meetings and organis e the taking of decisions . This general role has remained, but the relative influence of prime ministers varies over time.

It is commonly asserted that prime minister s h ave become more prominent in the last number of decades. This is probably most pronounced in the UK , which since the 1960s has seen the prime minister become the principal spokesperson for the party and government (though this is not sufficiently established empirically). The causes given are usually that TV and newer media allow the party leader reach much further into the electorate , and that a core decision in selecting a party leader (who can then become prime minister ) is that s/he will be an effective communicator.

The second issue thought to have contributed to the dominance of the prime minister is the increased importance of international decision - making bodies. This ‘summitry’ means that decision - making functions are necessarily delegated to leaders, allowing them return to their country with the ‘deal’ negotiated and offering it as a ‘take-it-or-leave-it’ proposal.

The problem with the assertion that these factors have led to increased prominence and increased power of prime ministers is that it has happened throughout Europe , yet many prime ministers are still very weak figures.

I suspect the media and summitry have contributed to an increased prominence of UK party leaders and prime ministers, but it is because an underlying institutional framework was in place to enable it.

3. What is the impact of coalition government on the role and powers of the Prime Minister?

Coalition government probably will have a greater impact on the position of the prime minister than any other factor or event. While prime ministers always have had to be mindful of what could pass in the Commons, prime ministers in single party governments had important levers to keep the party in check (patronage powers, institutional (agenda setting) powers, informational powers). In a coalition government there is a more formal need to get the approval of the other party which is almost by definition organised and capable of delivering a Commons defeat.

If one thinks back to John M ajor’s governments, the factions in his party meant his position was weak. However, he was able to split those factions at times by giving them tough choices, such as the one to defeat M a a stricht and cause an election , or to accept Ma a stricht . A more unified block could have let Major known that he would be defeated and then made it less likely that he would have made such an offer.

I n coalition there are usually arrangements in place to make the meeting of the party leaders in advance of cabinet which can smooth potential problems and agree outcomes. The relationship between the party leaders becomes very important, and cabinet might be thought to become less relevant.

Because you have parties which are electoral competitors forced to agree policy, there will be further tensions. Coalition essentially adds a nother veto player in the system which has at times both the incentive and the opportunity to use that veto . Coalition can, if the parties are ideologically distinct, place a major check on the power of the prime minister.

4. Are there sufficient checks and balances on the powers of the Prime Minister?
4a. If no, what additional or improved checks and balances are required?

There are a number of checks on a prime minister in this system. Coalition obviously adds an extra check on the powers of the prime minister. The cabinet is presumably free (here my knowledge of the exact prerogative powers given the UK PM might be lacking) to prevent a prime minister doing exactly what s/he wants and the Commons can also do this. In practice it is thought these institutions are supine. But presumably they would be able to stand up to a prime minister with a policy proposal that had widespread and intense opposition. I suppose it needs to be shown that these checks failed in some serious way at times. The rush to war in Iraq and (to a lesser extent) the decision to abolish the post of Lord Chancellor were ones which were later questioned but which arguably went through cabinet without sufficient scrutiny. We might ask what could have prevented these things from taking place.

One of the most obviously important aspects of particularly the former decision was the control the prime minister had of information. So the intelligence and legal advice was restricted to certain groups even though the decision was formally taken by a much wider group of people.

I n redesigning an institutional architecture to prevent I would be wary of imposing too many more checks on the government. There is a line between putting in checks on excessive power and imposing a system liable to deadlock – though one might say deadlock could be preferable to poor policy . A more effective system might be to ensure that those who can exercise checks on executive power can act from a position of full information. This will obviously be difficult in the case of issues of national security, but in other areas such as the monopoly of financial data held by the Treasury moves can and I believe have been put in place to reduce executive dominance .

A p rinciple guiding any institutional redesign would be that not too many v eto p layers can put stops in the system, but that those who have veto power ar e more likely to be talented and have the requisite information.

5. Is the Prime Minister sufficiently accountable personally to the electorate, to Parliament, and otherwise?
5a. If no, how should his accountability be improved?

An argument might be made that if power is personalised into a single figure then accountability should be personalised into that figure. The electorate has no way of holding a prime minister directly accountable, but it can hold the government to account through parliamentary elections. The prime minister is not personally responsible to parliament, as s/he is appointed by the Monarch. But in effect the prime minister needs the support of his or her party and we can see that a prime minister who ceases to have that support can be removed through the party. There may have been a constitutional crisis had say Margaret Thatcher refused to resign as PM when her party lost confidence in her. I t might be best to prevent potential constitutional crises by formalising the PM’s reliance on parliamentary support, and by giving parliament the role of nominating and declaring no confidence in a prime minister which the Monarch could then formally ratify.

I suspect one does not w ant to remove the ability to take decisions from the executive rather to ensure that when it does, it does so for the right reasons, of if there are nefarious intentions these can be exposed . To repeat what I say above t his might be better achieved by increasing access to information and opportunities to interrogate government policy. Other methods of accountability should be considered whereby prime ministers can be summoned to and forced to answer detailed policy questions in committees might offer greater levels of accountability. In general the problem, as I see it, is that there are few opportunities to question a prime minister except on their terms. PMQs exist, but these generate more heat than light. Perhaps one debate each parliamentary session should be devoted to detailed scrutiny of government policy.

6. Are structures of power beneath the Prime Minister sufficiently clear and accountable?
6a. If no, how should this clarity and accountability be improved?

The main structure of accountability it through the doctrine of ministerial responsibility . This expects that the government as a whole and ministers individually are accountable to parliament through the requirement that government retains its confidence. B ut it is unclear as to how the doctrine of ministerial responsibility should be operationalised . Individual ministerial responsibility is difficult to pin down.

Ministers are responsible to parliament, but their positions are in the hands of the prime minister. So parliament could not fire a minister. In practice a minister who the parliament thought unsuitable for the job probably wouldn’t retain the post, but that parliament cannot directly do so.

More serious problems are that fewer decisions are now taken by ministers than before. M ore decisions are made at non-departmental level and it is implausible that we expect ministers to be personally (as opposed to being formally) responsible for the decisions taken in a department. Increasing the importance of parliament and its ability to summon, question and if necessary reprimand civil and public servants might be one means to increase the accountability of the executive.

7. Should the Prime Minister be directly elected by the British people?

The means by which the prime minister is s elected in the UK is not as unusual as is perhaps thought. A prime min ister is the head of government whose term of office is linked to that of the parliament, and whose government must retain the confidence of parliament. The relationship between the executive and legislature often extends beyond that, in that the prime minister or the government is elected or nominated by the parliament. In a number of countries including Britain the Head of State has a role. But even where this does happens, it is usually the case that the government chosen is the one who would have had the support of a majority in parliament had this been explicitly required . [1]

Some (including the committee chair) have expressed fears that because the prime minister is such a powerful figure that s/he should be directly elected. Prime ministers have no popular mandate and therefore there is potentially an accountability deficit. One possible solution is to have the prime minister elected directly by the people. One would need to think how this would happen, but it could be a major constitutional shift to a presidential system. A directly elected prime minister within a parliamentary system occurred in Israel and has been debated in Italy and the Netherlands (countries that had been dogged by weak executives ) but in Israel it actually weakened the prime ministers and there were good reasons why we could have predicted that this would happen. I would not recommend it.

8. If one considers that the problem is over-powerful prime ministers with too few checks on their power, then directly electing them won’t solve the problem but might increase the demand to centralise power further.

22 February 2011

[1] The example of Gough Whitlam might make one consider that it would be wise to formalise rules.