My prerogative?

The royal prerogative provides the executive with a wide array of powers which it can exercise without any formal need for parliamentary approval. So why would ministers choose to surrender them?

One of the most striking parts of the Governance of Britain Green Paper (Cm7170) published by the Ministry of Justice in July 2007 was entitled ‘Moving royal prerogative powers to parliament’. It stated:

In most modern democracies, the government’s only powers are those granted to it by a written constitution or by the legislature. A distinguishing feature of the British constitution is the extent to which government continues to exercise a number of powers which were not granted to it by written constitution, nor by Parliament, but are, rather, ancient prerogatives of the Crown.

There is no single accepted definition of the royal prerogative. But it is fair to say it amounts to a set of authorities that have largely devolved upon ministers. Parliament has never approved them – and consequently has not been able to provide for itself a formal role in consenting to their specific exercise. Courts have proved reluctant to subject the prerogative to judicial review. Nor is there a definitive list of all these powers. But they include:

• the appointment and dismissal of Ministers;
• the summoning, prorogation and dissolution of Parliament;
• Royal Assent to bills;
• the appointment and regulation of the Civil Service;
• directing the disposition of the Armed Forces in the UK;
• the granting of honours, Peerages and other patronage; and
• the issue and revocation of passports.

The conduct of external affairs is exceptionally dependent upon the use of the royal prerogative, which enables:

• The making of treaties;
• the declaration of war (now apparently in practice obsolete) and the deployment of the armed forces on operations overseas, including hostile action;
• the recognition of foreign states; and the conduct of diplomacy.

It is foreign policy which has lately helped bring the royal prerogative into disrepute; in particular, the controversy surrounding the invasion of Iraq in 2003 drew attention to the constitutional authority under which the military action was conducted.

The Labour MP Graham Allen began tabling a parliamentary motion with cross-party support calling for the introduction of a mechanism providing for prior Commons approval of military action and for it eventually to be placed on a statutory basis. There followed a number of private members’ bills to similar effect and a broader inquiry by the Commons Public Affairs Select Committee (PASC) into the prerogative.

In its 2004 report, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (HC422) PASC concluded: ‘This is unfinished constitutional business’. It recommended rapid action to ensure ‘full parliamentary scrutiny’ of decisions on armed conflict, the conclusion and ratification of treaties and the issue and revocation of passports; accompanied by a public consultation leading to a proposal for ‘legislation to provide greater parliamentary control over all the executive powers enjoyed by Ministers under the royal prerogative.’

The Tony Blair government was unreceptive to PASC’s proposals, although it did commit in principle to placing the Civil Service on a statutory basis, producing a draft bill in 2004.

But with the transition to Gordon Brown at No.10 in mid-2007 and his unveiling of the Governance of Britain constitutional reform programme as the centrepiece of his premiership, the position changed dramatically. The July 2007 green paper expressed the view that the ability of the executive ‘to exercise authority in the name of the monarch without the people and their elected representatives in their parliament being consulted’ was ‘no longer appropriate in a modern democracy’.

The Constitutional Renewal white paper and draft bill, published in March this year (CM 7342 I and II), contains plans for a firmer parliamentary role in military conflict and treaties; and a civil service bill. Solid proposals on passports are promised; and there is an attempt underway to initiate a convention that ‘the prime minister is required to seek the approval of the House of Commons before asking the Monarch for a dissolution’. At the same time the government is ‘conducting an internal scoping exercise of the executive prerogative powers’ to be followed by a ‘consultation on the next steps’.

But already there are criticisms that this programme does not live up to its billing. In its report Constitutional Renewal: Draft Bill and White Paper (HC 499) PASC has stated that while it found ‘much to welcome in the Government’s proposals for the civil service…The Government’s proposals on the other prerogative powers…are disappointingly limited, especially given the Prime Minister’s undertaking to entrust “more power to Parliament and the British people”’.

Much hinges on the outcome of the scoping exercise now underway. For instance, will it lead to a recommendation that parliament be granted a clear role in the conduct of diplomacy? It is correct to identify treaty ratification as an important Prerogative power, in some senses more significant than war making, since these international agreements, of which the UK enters into around thirty a year, cover a vast swathe of policy areas.

But if parliament is not involved in negotiations leading to the drafting of treaties, it will simply be presented with them as a take-it-or-leave-it option and its role will not have been significantly enhanced.

It should be noted further that the government has confined itself to consideration of prerogatives that have devolved to ministers and not those that remain personal to the monarch, such as appointing the prime minister. In the circumstances of a hung parliament, with competing credible candidates for the premiership, the lack of a transparent democratic process for selecting someone to form an administration could generate controversy and undermine the legitimacy of the political system.

So can we expect the programme for overhauling the royal prerogative to become bolder? Some suspect that Gordon Brown’s Governance agenda is more of a positioning exercise, intended to differentiate him from Blair and shake off his tag as a centraliser, in which case the answer would probably be negative. But Brown has a past record of interest in this area and it is unwise to portray the actions of politicians purely in cynical terms.

Issues of principle aside, it might be asked why we should expect any government to hand over such a cornucopia of authorities. They provide the discretion that is, after all, fundamental to political power.

A number of observations might encourage ministers to be more generous in their sharing of authority. The appearance of omnipotence leads to corresponding unfulfillable expectations on the part of the electorate, ending in disappointment. Wider deliberation that involves Parliament to a greater extent is likely to lead to more effective, politically sensitive policy. And shared responsibility may help spread the blame when things do not work out well.

Finally, a power can become a burden. Last autumn, Gordon Brown’s possession of the right, albeit subject to a Commons vote, to request a dissolution (with the monarch being the person who grants it, or — just conceivably — does not) far from giving him an advantage over his opponents, placed him in a predicament marking the start of a serious political decline for the Prime Minister.

Perhaps, bearing in mind that it could be a party of government other than his own that wields it within two years, he should pursue a constitutional ‘scorched earth’ tactic, destroying the Royal Prerogative before it falls into the hands of his enemies; and in the process securing his legacy as a great reforming premier.