2 Clarity about role and powers
Origins and
sources
3. When Lord Hennessy gave evidence to us, he commented:
"the role of the Prime Minister is like the British constitution
as a whole—you think you are getting close and it disappears
into the mists."[2]With
the role itself difficult to define, it is not surprising that
the powers of the person who fulfils the role are similarly problematic
to outline definitively.Most powers exercised by the Prime Minister
are not defined in statute and cannot be found in one place.In
his book The Prime Minister: The office and its holders since
1945, Lord Hennessy stated: "Arguments have raged around
the powers of the British Prime Minister for nearly 300 years."[3]
4. Without a clear definitionof the role of Prime
Minister, the powers associated with the office have been able
to evolveand accumulate, unhindered by statute, over hundreds
of years.It is impossible to point to a single pointin history
when the post was created, or even a decision to create it.Sir
Robert Walpole, who became First Lord of the Treasury—a
post which is now traditionally held by the Prime Minister—in
1721, is often thought of as the first Prime Minister.However,
formal acknowledgement of the post's existence was a lengthy and
gradual process.
5. Professor George Jones, of the London School of
Economics and Political Science, lists the following examples
of the recognition of the post and institution of the premiership:
- The Times began regularly referring to this specific
title in the early nineteenth century;
- The list of ministers printed in Hansard began
using the title 'Prime Minister' in 1885;
- In the minutes for the first meeting of the Committee
of Imperial Defence in 1902, the 'Prime Minister' was referred
to as being present;
- The Imperial Calendar (the predecessor to the
Civil Service Yearbook) referred to the 'Prime Minister' for the
first time in its 1904 edition;
- The Prime Minister was given a position in the
order of precedence in 1905;
- The first mention of the Prime Minister in statute
came with the Chequers Estate Act 1917;
- Reference to an explicitly labelled 'Prime Minister's
Office' in the Civil Service Yearbook did not take place until
the appearance of the 1977 edition.[4]
The Ministers of the Crown Act 1937 specified how
much the Prime Minister and First Lord of the Treasury was to
be paid.
6. Just as it is impossible to point to a single
moment when the role of Prime Minister officially came into existence,
there is no single authoritative source for what therole involves
and the powers the Prime Minister can exercise.Professor Kevin
Theakston and Dr Timothy Heppell, of the University of Leeds,
commented:
There is no constitutional definition of the
British Prime Minister's role or any authoritative specification
of the office's functions, powers and responsibilities. They are
a matter of convention and usage, not statute, and are thus to
a large degree flexible and subject to variation and change over
time.[5]
Professor Jones stated in his written evidence:
At present much of the prime-ministerial role,
including being the most senior adviser to the monarch and chair
of Cabinet, remains defined in convention and is often exercised
under the Royal Prerogative.While some of the powers of the office—mainly
about public appointments—exist under statute, the premiership
has a slimmer statutory existence than many other offices of state.As
of 2010, there were 92 pieces of primary legislation and 422 of
secondary legislation referring specifically to the Prime Minister
(there are other references to the 'First Lord of the Treasury'
and the 'Minister for the Civil Service').By contrast, the respective
totals for the Secretary of State for Health were 662 and 7,205;
and for the Business Secretary 577 and 2,221.[6]
Cabinet Manual
7. In February 2010, the then Prime Minister, Rt
Hon Gordon Brown MP, announced that he had asked the Cabinet Secretary
"to lead work to consolidate the existing unwritten, piecemeal
conventions that govern much of the way central government operates
under our existing constitution into a single written document."[7]The
first chapter of a draft Cabinet Manual—on elections and
Government formation—was published in February 2010.A full
draft was published for consultation in December 2010.The final
version of the Cabinet Manual was published in October
2011.It is described on the Government's website as "a guide
for members of Cabinet, other Ministers and civil servants in
the carrying out of government business", and contains arguably
the most comprehensive official account to date of the role and
powers of the Prime Minister.[8]It
was therefore not until October 2011, following calls by us and
others, that the public saw for the first time the Whitehall view
of the office of Prime Minister.
8. The Cabinet Manual begins by setting out how the
Prime Minister acquires office:
3.1 The Prime Minister is the head of the Government
and holds that position by virtue of his or her ability to command
the confidence of the House of Commons, which in turn commands
the confidence of the electorate, as expressed through a general
election.The Prime Minister's unique position of authority also
comes from support in the House of Commons.By modern convention,
the Prime Minister always sits in the House of Commons.The Prime
Minister will normally be the accepted leader of a political party
that commands the majority of the House of Commons....
3.2 The Prime Minister accepts office at a private
audience with the Sovereign, at which time the appointment takes
effect.The Prime Minister is, by tradition, the First Lord of
the Treasury...In his or her capacity as First Lord of the Treasury,
the Prime Minister takes oaths of office under the Promissory
Oaths Act 1868.
Then it goes on to outline in broad terms the Prime
Minister's functions:
3.3 The Prime Minister has few statutory functions
but will usually take the lead on significant matters of state.The
Prime Minister has certain prerogatives, for example recommending
the appointment of ministers and determining the membership of
Cabinet and Cabinet Committees.However, in some circumstances
the Prime Minister may agree to consult others before exercising
those prerogatives.The Ministerial Codestates: 'the Prime
Minister is responsible for the overall organisation of the Executive
and the allocation of functions between Ministers in charge of
departments.'
3.4 It is for the Prime Minister to advise the
Sovereign on the exercise of the Royal Prerogative powers in relation
to government, such as the appointment, dismissal and acceptance
of resignation of other ministers and certain other statutory
powers, such as the calling of elections where there is an early
election or a deferred election under the Fixed-term Parliaments
Act 2011....
3.5 At regular meetings with the Sovereign, the
Prime Minister informs him or her of the general business of the
government.The Prime Minister's other responsibilities include
recommending a number of appointments to the Sovereign.These include
high-ranking members of the Church of England, senior judges and
certain civil appointments.He or she also recommends appointments
to several public boards and institutions, as well as to various
Royal and statutory commissions.
3.6 The Prime Minister has held the office of
Minister for the Civil Service since that office was created in
1968, in which capacity he or she has overall responsibility for
the management of most of the Civil Service...The Prime Minister
is the minister responsible for National Security and matters
affecting the Secret Intelligence Service, Security Service and
GCHQ collectively, in addition to which the Home and Foreign Secretaries
of State and the Secretary of State for Northern Ireland have
powers granted in legislation to authorise specific operations.The
Prime Minister is also sworn as a member of the Privy Council.[9]
9. Professor Sue Pryce, of the University of Nottingham,
writing about the draft Cabinet Manual, stated: "The
Cabinet Manual probably amounts to the most detailed official
attempt yet to define the role of the Prime Minister, whose powers
are spread across various statutes, conventions and codes.Yet
it mainly serves to demonstrate just how imprecise the position
is."[10]
Prerogative powers
10. As the Cabinet Manual notes, the Prime
Minister's powers include prerogative powers, which areexercised
by the Prime Minister on behalf of the monarch.There is no one
agreed definition of what constitutes a prerogative power and
no one definitive list of the powers themselves.The previous Government's
Review of the Executive Royal Prerogative Powers, published
in 2009, represents the most comprehensive and authoritative recent
attempt to list prerogative powers.The Review states:
The scope of the Royal prerogative power is notoriously
difficult to determine.It is clear that the existence and extent
of the power is a matter of common law, making the courts the
final arbiter of whether or not a particular type of prerogative
power exists.The difficulty is that there are many prerogative
powers for which there is no recent judicial authority and sometimes
no judicial authority at all. In such circumstances, the Government,
Parliament and the wider public are left relying on statements
of previous Government practice and legal textbooks, the most
comprehensive of which is now nearly 200 years old [Joseph Chitty,
A Treatise on the Law of the Prerogatives of the Crown,
1820].[11]
11. Since the Government published its list of prerogative
powers in 2009, a number of the powers have been placed on a statutory
footing.The Constitutional Reform and Governance Act 2010 introduced
a statutory basis for the management of the civil service, and
a new parliamentary process for the ratification of treaties.The
Fixed-term Parliaments Act 2011 abolished the prerogative power
to dissolve Parliament.The Actset the date of the next general
election as 7 May 2015 and as the first Thursday in May in every
fifth year thereafter, and provided that early elections could
be held only if a motion for an early general election was agreed
either by at least two-thirds of the total membership of the House
of Commons or without division, or if a motion of no confidence
was passed and no alternative Government was confirmed by the
Commons within 14 days.Professor Robert Hazell, of University
College London, described the Fixed-term Parliaments Act as "a
very significant surrender of prime ministerial power."[12]
12. These instances of placing prerogative powers
on a statutory footing followed the publication in 2004 of a Public
Administration Select Committee report,Taming the Prerogative:
Strengthening Ministerial Accountability to Parliament, and
in 2007 of The Governance of Britain Green Paper, which
discussed transferring a number of prerogative powers to statute,
or making them subject to greater parliamentary oversight.The
principal remaining prerogative powers that are candidates for
such treatment are the prerogative power to deploy armed forces
abroad and the prerogative power to issue, refuse to issue, revoke,
or withdraw passports.We recently published a report about the
Prime Minister's prerogative power to commit armed forces to conflict
abroad and called for a House resolution clarifying and formalising
the role of Parliament in conflict decisions, as an interim step
to enshrining in law the need for the Prime Minister to consult
the House of Commons on the use of armed force abroad.[13]Other
prerogative powers that are discussed in the Government's 2009
Revieware the prerogative power to grant pardons and remission
to prisoners, the prerogative power to call an inquiry, and the
prerogative power to keep the peace where no emergency exists.
13. Dr Mark Bennister, of Canterbury Christ Church
University, stated in his written evidence: "There is a strong
case for more of the prerogative powers to be transferred to statute,
giving greater reference to parliament on matters of national
significance (such as war making powers)."[14]
The Green Party's written evidence called for all prerogative
powers to "be transferred to statute or extinguished."[15]Professor
Hazell, however, commented: "The prerogative powers, I would
suggest, are not as unusual as we suppose that they are.In all
political systems, you have to have some kind of system of reserve
power."[16]
14. The office of Prime Minister has evolved over
nearly three centuries.It is both a cause and a consequence of
that evolution that there is no single authoritative source of
information on the Prime Minister's role and powers.The Cabinet
Manual, published in October 2011, contains arguably the most
comprehensive official account to date of the Prime Minister's
role and powers, but it is aimed at Ministers and civil servants,
rather than the public, and it has no statutory force.
15. We request that the Government explore in
a Green Paper the arguments for and against placing the Prime
Minister's role as outlined in the Cabinet Manual on a statutory
footing, so that the next Parliament can decide the issue.
16. Many of the Prime Minister's powers are exercised
under the prerogative.These powers in particular are difficult
to define and are therefore hard to scrutinise effectively, and
confusing to many people.We welcome the recent moves to place
some prerogative powers on a statutory footing, and we also accept
that there is a need for the Prime Minister to retain some reserve
powers that are not codified in statute for use in an emergency.However,
the process of transferring prerogative powers to statute, and
making them subject to greater parliamentary oversight, must continue.
2 Q293 Back
3
Peter Hennessy, The Prime Minister: the office and its holders
since 1945, (London, 2000), p 4 Back
4
Professor George Jones written evidence citing Andrew Blick and
George Jones, Premiership: the development, nature and power
of the office of the British Prime Minister Back
5
Professor Kevin Theakston and Dr Timothy Heppell written evidence Back
6
Professor George Jones written evidence Back
7
Speech to Institute for Public Policy Research, 2 February 2010,
text available at: http://labourlist.org/2010/02/speech-by-gordon-brown-towards-a-new-politics/ Back
8
www.gov.uk/government/publications/cabinet-manual
Back
9
The Cabinet Manual, 2011,paras 3.1 to 3.6 Back
10
Professor Sue Pryce written evidence Back
11
Ministry of Justice, The Governance of Britain: Review of the Executive Royal Prerogative Powers: Final Report,
2009,para 27 Back
12
Q82 Back
13
Parliament's role in conflict decisions: a way forward, Twelfth
Report of Session 2013-14, HC 892, para 49 Back
14
Dr Mark Bennister written evidence Back
15
Green party written evidence Back
16
Q79 Back
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