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Taming the prerogative

It was the royal prerogative that gave Blair the power to send British troops to Iraq without consulting Parliament. Surely, Stuart Weir argues, its reform is long overdue

March 1, 2005
7 min read

Among the previously promised reforms made orphans by Labour after Tony Blair became leader of the party in 1994, the most significant casualty was the pledge to bring the royal prerogative under parliamentary control. Yet it was possibly the least missed – at least until it dawned on everyone that it was the royal prerogative that gave Blair the power to send British troops to kill and be killed in Iraq without consulting Parliament.

Perhaps it seemed that the prerogative was one of those quaint survivals that gave the Crown the right to sturgeon and swans or sanctioned the men in tights who rule over the flummery at the Palace of Westminster. In fact, the prerogative gives the prime minister and his government almost unchecked powers not only to make war abroad, but also to deploy troops at home (to maintain the peace), to make and ratify treaties, to conduct foreign policy, to negotiate for the UK in the EU and on other multilateral bodies, to share in Nato’s decision-making, to represent Britain at the United Nations, to organise and re-organise the civil service, to grant and revoke passports, to dissolve Parliament, to dispense peerages and honours, to appoint senior judges and to stop prosecutions.

These rights are medieval in origin and are formally used by ministers (and officials) on the Queen’s behalf. In effect, they give ministers wide-ranging executive powers that may be exercised without parliamentary approval or scrutiny. Parliament doesn’t even have the right to know what these powers are. Ministers shrug off parliamentary questions about them by saying that it would be impossible to list them, that records are not kept of their use and that it would not be practicable to do so.

The prime minister’s ability to engage in armed conflict overseas is the most outrageous of these powers, but a moment’s thought reveals how all-embracing the government’s freedom to make foreign policy and enter into treaties actually is. Deals in the WTO; policy decisions at the World Bank, IMF and Nato; negotiations in the G7 and G8; diplomacy in the UN Security Council; the governance of the EU: these are all covered by the royal prerogative. This is a wide-ranging panorama of policies and decisions that intimately affect the everyday lives of the people of Britain and the world. The debates in Brussels (like the current debate on targets for carbon dioxide emissions) are vital matters; EU trade policies do more harm to the lives of people in developing countries than the aid we so generously hand out to them can redress. Think, too, of the impact of decisions at the WTO, IMF, World Bank, G7 and G8 on, for example, the economies of developing nations and the world poor, or global warming. And what is it that allows Blair to determine the conduct of the special relationship with his comrade-in-arms George W Bush, and to turn his back on our European allies? The royal prerogative.

The slogan that united the hundreds of thousands who marched in protest against the Iraq war applies in each and every case: ‘not in our name’. The prerogative puts into the hands of ministers decision-making powers that do not require parliamentary approval or get parliamentary scrutiny while they are engaged in rounds of activity that shape the world we live in. The bodies in which such decisions are taken are remote and opaque, and the UK’s new freedom of information rules ensure that the role British ministers and officials play in them remains secret unless it is in government’s interest to make it known.

And this does not just concern the great international issues. The directives and regulations that pour through Brussels have a substantial impact on domestic law in the UK: some say that the EU shapes three quarters of UK legislation. Similarly, when Margaret Thatcher was prime minister, she used the prerogative to impose the ban on trade unionism at GCHQ, the intelligence services’ ‘listening post’ (and a crucial pillar of the special relationship).

You might think that the prerogative has no place in a modern Western democracy, that it is used as a smoke-screen by ministers to obfuscate the use of power for which they are insufficiently accountable. Well, that’s almost exactly what Jack Straw said when, in an earlier democratic incarnation, he described the prerogative in 1994. His words were true then; they are truer now.

The Iraq war has provoked renewed interest in ‘taming the prerogative’. The House of Commons Public Administration Select Committee conducted a thoughtful review of prerogative powers a year ago and published a short bill as a model for future reform. It recommended that over time all prerogative powers should be placed on a statutory footing, and that there should be early legislation on decisions on armed conflict, treaty-making and passports. Well-known radicals such as Douglas Hurd and William Hague expressed their concern that prime ministers should be obliged to seek parliamentary authority before going to war.

There are those who would reassure us that the two votes on the Iraq war have created a precedent that will ensure that in future any prime minister contemplating military action will have to get parliamentary approval first. So there is no need for legislation to insist upon it. But decisions of such gravity cannot be left to a government’s good will. Legislation is needed to put a stop to the exercise of public power without parliamentary authority, to put in place proper ministerial accountability and to give citizens the opportunity to make their voices heard.

Neil Gerrard, the Labour MP for Walthamstow (and regular Red Pepper contributor), has introduced a bill into Parliament, the Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill 2005, the aim of which is to insist that in future prime ministers must seek Parliament’s authority for armed action abroad. Gerrard, who came 12th in this parliament’s ballot for private members’ bills, has strong cross-party support in the Commons, and the democratic reform campaign Charter88, now being revitalised by joint directors Ron Bailey and Peter Facey, is mobilising support outside Westminster.

Gerrard doesn’t expect that his bill will go far. He sees it as a scouting mission for similar bills after the next election and for a wider reform measure that will make prerogative powers generally subject to parliamentary approval. Ministers must, of course, possess flexible executive powers; otherwise, they could not govern. But the use of those powers must be open to parliamentary approval and scrutiny – and rejection.

It would be very difficult to frame a bill that would put all prerogative powers on a statutory footing and so make their use subject to parliamentary approval and scrutiny (though Liberal Democrat peer Lord Lester has had a go in the House of Lords). It is simply that no one, probably not even in Whitehall, really knows what they all are. So the public administration committee’s prescription looks like the best starting place: first, legislate at once on the three areas of most concern – military action, treaty-making and passports (a human rights issue), and pass a Civil Service Act that would ensure that changes must also be made subject to parliamentary approval; second, demand a full list of prerogative powers from the executive and prepare a bill for comprehensive reform. Where it matters, Parliament should also be able to mandate ministers, as they do in some Scandinavian countries. But that is another story.

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