Role and powers of the Prime Minister - Political and Constitutional Reform Contents


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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Prepared 24 June 2014