§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Arbuthnot.]2.20 am
§ Mr. John Garrett (Norwich, South)
I wish briefly to explore the scope and limits of the royal prerogative and its present-day usage by the Government, and to put a number of questions to the hapless Minister who has the duty of answering the debate. I want to ask him about the profoundly undemocratic practice that allows a Government to act with royal absolutism.
As I understand it, the royal prerogative denotes what remains of the monarch's power to legislate without the authority of Parliament. As the monarch acts on the advice of Government, the procedure enables a Government to produce primary legislation without parliamentary consent—legislation which, as was made clear by the GCHQ case, may not be challenged in the courts.
Blackstone's 18th century "Commentaries on the Laws of England" referred to the prerogative asthat special pre-eminence which the King hath, over and above all other persons, and out of the course of the common law, in right of his royal dignity"—an arrangement that Blackstone described asin its nature singular and eccentrical".In the past 10 years, some 1,400 orders have been made under the prerogative. Ministers usually imply that such orders relate to such quaint and innocuous matters as the grant and amendment of charters, and the appointment of visitors and governors of universities. Many do; but the prerogative is also applied to important international obligations and, in particular, to citizens' rights.
The prerogative is used for the making of international treaties—which may be why from time to time, when it suits them, Ministers tell us that any Commons vote on the Maastricht treaty can be disregarded by the Government. It is also used for the declaration of war and blockade. The Government used it to commit British military forces in the Gulf war—prompting my right hon. Friend the Member for Chesterfield (Mr. Benn) to observe:this is the first time in the history of this country that British troops have been sent into battle under foreign command, using the royal prerogative of war-making to do so, without the House having had an opportunity to express its view on any motion other than that we adjourn".—[Official Report, 14 January 1991; Vol. 183, c. 616.]My right hon. Friend contrasted the handling of the matter in the House of Commons with the way in which both Houses of the United States Congress had debated and voted on a resolution on military action.
The Government used prerogative powers to enable the United States military to bomb Libya from bases in England. That was a matter of awesome political importance, in which—once again—the House of Commons had no status. The prerogative is used for the control and organisation of the armed forces. In the matter of civil liberties, under the royal prerogative the Government can refuse or withdraw a passport, and can forbid a citizen to leave the country. There is no legal obligation on the Government to provide a passport, which I should have thought was a fundamental right of any citizen of this country.
Jury vetting guidelines and telephone tapping are authorised by royal prerogative, apparently under an ancient royal right to intercept communications between 486 subjects. The criminal injuries compensation scheme was established by royal prerogative without statutory authority.
Most notoriously in recent times, the royal prerogative was used in 1984 to ban from membership of trades unions the staff of the Government intelligence establishment GCHQ. In a subsequent court case on that subject, the Government argued successfully that not only were their powers not open to judicial review, but that instructions given in exercising them enjoyed the same immunity. This situation derived from the fact that the legal relationship between the Crown and civil or Crown servants is governed by the prerogative, and is unlike any normal contractual relationship between employer and employee. That explains why we in this country have yet to resolve the crucial issue whether the duty of a civil servant is to the national interest or to the Government, and why there is no protection for whistleblowers in the civil service.
In any other country, the civil service would be regulated by a civil service Act that set out in law the rights, duties and constitutional position of civil servants. Here, the civil service is subject to the monarchical whims of some Minister. My first question to the Minister is, why cannot the civil service be governed by a civil service Act, and are the Clerks of this House also governed by the royal prerogative, rather than by legislation passed by the House?
The royal prerogative is used for literally thousands of appointments in the public sector, and it is the fount of Government patronage. In 1965, Lord Reid observed:it is not easy to discover and decide the law relating to the royal prerogative and the consequences of its exercise.He noted that there had been "practically no authority" on the matter since 1688.
The most extensive discussion recently of the royal prerogative was by Professor Colin Munro in a publication in 1987. He wrote:In practice … the supervision of prerogative powers does seem to be attended by greater than average difficulty. The very nature of these powers makes them less readily subject to challenge.He tells us that the Parliamentary Commissioner for Administration, or ombudsman, has no power to examine decisions under the royal prerogative and says:the exercise of prerogatives by the Attorney General may not be reviewed.He also says:The correlation between the matters excluded from the Commissioner's jurisdiction and the spheres of activity in which governments exercise prerogative powers is striking.We also learn from Munro that the manner of the exercise of prerogative powers lies outside the scope of judicial review, so we are inevitably brought to the conclusion that a British subject may be deported, or refused a passport, or have his or her telephone tapped or mail opened by the state without legislative authority, and that neither Parliament nor the judiciary is entitled to examine the matter.
The Minister will also know that subsidiary powers flow from the royal prerogative. The Crown's right to have admissible evidence withheld from a court when it claims that the public interest so demands has been known as Crown privilege although nowadays its existence is disputed. Does it exist, I ask the Minister, and what does it cover? Is there still such a concept in British law as Crown privilege which exempts the Crown from justiciable matters?
487 Crown immunity is certainly alive and kicking. The sovereign—and, therefore, the Government—still enjoy a number of immunities derived from the ancient "prerogative of perfection"—that is, "The King can do no wrong." What it means today is that Government Departments and many public bodies are not bound by a huge range of protective legislation, such as health and safety, food hygiene laws and planning and environmental regulations. I understand that that legislation does not, for example, protect those who work in the parliamentary precincts, let alone the hundreds of thousands of people in other public organisations. Therefore, to be employed in a public building means that one cannot be protected by a wide range of legislation.
Munro concludes:Behind the phrase "royal prerogative" lie hidden some issues of great constitutional importance, which are insufficiently recognised.It seems that the prerogative could be dispensed with almost entirely. The civil service and the military could be governed by Acts of Parliament, as in other countries. Telephone tapping, mail interception, deportation and entitlement to travel should be justiciable. Senior public appointments could be supervised by Select Committee. The Speaker could take over some prerogative powers, such as the dissolution of Parliament and the invitation to the leader of the party with the largest majority to form a Government.
In a recent written answer to my hon. Friend the Member for Nottingham, North (Mr. Allen), the Prime Minister said:It is for individual Ministers to decide on a particular occasion whether and how to report to Parliament on the exercise of prerogative powers."—[Official Report, 1 March 1993; Vol. 220, c. 19.]It is nothing less than a constitutional outrage that Ministers should decide whether to withhold matters from Parliament. It should be the Speaker's job to decide how the exercise of prerogative powers should be reported to the House. It should also be up to the Speaker to judge whether a Minister should answer to the House for the use of extra-statutory power.
The royal prerogative is an anachronism—an example of the overweening and authoritarian power of Government over Parliament. In truth, the purpose of our Parliament is to provide a Government and to scrutinise their actions and decisions, but only to the extent that Government will allow. That is not good enough. The royal prerogative is a chilling manifestation of the way in which our democracy is deficient, and it should be mapped by the Select Committee on Procedure as soon as possible, and then largely ended.
I am keen to hear what the Minister has to say about the boundaries of the royal prerogative and the extent to which as, I hope, a democrat he thinks that government by proclamation and diktat could be replaced by a proper legislative process.
§ 2.32 am.
§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Charles Wardle)
The hon. Member for Norwich, South (Mr. Garrett) has shown interest in constitutional matters for 25 years. I know that because I have read the flyleaf of his book. I mean no disrespect in mentioning it. In the final paragraph on page 65, he uses the same quotation from the right hon. Member for Chesterfield (Mr. Benn).
488 Tonight the hon. Gentleman has raised the question of ministerial exercise of powers under the royal prerogative and implied that there is some abuse in the exercise of such powers. That is not the case, as I shall prove. I shall attempt to deal with most of the points that he has raised but, if there are any that I have not dealt with by the end of the debate, I shall write to him.
As the hon. Gentleman knows, the history of the royal prerogative goes back to the middle ages, when the king was both feudal lord and head of the kingdom. He therefore had all the rights of a feudal lord and certain exceptional rights. The king could not be sued in his own courts and, in addition, had powers to defend the realm against enemies and anundefined residue of power which he might use for the public good.It was the "undefined residue" of prerogative power which caused disputes when claimed by the Stuarts. Lawyers claimed then that there was a fundamental distinction between the ordinary and the absolute prerogative; the ordinary prerogative being those functions the king would exercise only in defined ways, which involved no element of discretion. Thus the king could dispense justice only through the judges, and make laws through Parliament.
The absolute prerogative, on the other hand, the king's discretionary powers, were the powers on which Charles I relied in seeking to govern without Parliament. The conflict was resolved after the execution of one king and the expulsion of another.
However, the problem still remained. It was resolved in two stages. The Bill of Rights of 1689 declared illegal certain specific uses and abuses of the prerogative, and since then there has been a growth in responsible government and the establishment of a constitutional monarchy. It became established that certain prerogative powers could be exercised only through and on the advice of Ministers responsible to Parliament.
The royal prerogative has been described by a distinguished constitutional writer as an "attenuated remnant". The rights of Parliament to limit the prerogative are unrestricted. It is a one-way street. By definition, the scope of the prerogative is not greater now than it was in, say, 1979, and I have seen no convincing demonstration that the use of the prerogative is significantly different, or that practice in reporting such use to Parliament has changed.
It is simply not the case that the royal prerogative has to a large extent got stuck in Whitehall, as the hon. Gentleman implied. The legislative authority of Parliament to limit prerogative powers is unlimited, and the extent of the prerogative has been steadily reduced over the years and cannot be increased. Such prerogative powers are residual and may be restricted or abolished by statute, and even where statute overlaps prerogative powers, the prerogative power falls into abeyance and the Crown from then on uses the statutory rather. than the prerogative power.
The hon. Gentleman claims that the prerogative has been used some 1,400 times in the past 10 years and asks why, implying that the Government have abused their powers. The same powers have of course been used, in much the same way, by previous, Labour, Governments; indeed, they have been used by successive Governments.
The hon. Gentleman cites in particular the declaration of war, the making of international treaties, and judicial 489 and civil service appointments. But it is inconceivable that any Government would declare war without being confident that they would command parliamentary support. The money needed to sustain the war could be voted only by Parliament.
No sensible Government would take the risk of declaring war without being assured of parliamentary support. The events of 1939 and 1940, and the way in which this country fought that war as a democracy, changing the Prime Minister as a direct result of an expression of the feeling of the House, provide evidence of the flexibility and strength of our unwritten constitution.
Treaties are published under the Ponsonby rule. It has been in use for nearly 70 years, including periods when the Labour party was in power. It applies to all treaties that are signed subject to ratification, and was born out of the desire to give Parliament the opportunity to examine such treaties before they were ratified. They include those which established NATO and the Western European Union, and more recently the Antarctic treaty, the Montreal protocol on the control of CFCs, and so on.
The value of the procedure, and its effectiveness for allowing an opportunity for parliamentary scrutiny and debate before ratification, is thus well proven, and has been accepted by successive Governments. Where a treaty cannot be ratified without making a change to domestic law, the full Bill procedure is required for that change to be made, as Members will be well aware from the debates on the Maastricht treaty, which is surely the most widely debated and closely analysed of any international treaty in recent memory.
This country is rightly proud of the political neutrality of its civil service and of the independence of its judiciary. Those would not necessarily be strengthened if Parliament was involved in the appointments process. Judicial appointments are made either by a responsible Minister, as in the case of the Lord Chancellor, or, as in the case of the senior judiciary, by the Queen on the advice of the Prime Minister. In the case of both civil service and judicial appointments, Ministers are accountable to Parliament through a substantive motion. The Civil Service Commission upholds and oversees the principle of appointment on merit through fair and open competition.
The hon. Gentleman also questioned the use of the prerogative in the issue and refusal of passport facilities. Under the present system, United Kingdom passports are issued at the discretion of my right hon. and learned Friend the Home Secretary and my right hon. Friend the Secretary of State for Foreign and Commonwealth Affairs, exercising the royal prerogative.
In practice, refusal of passport facilities to United Kingdom nationals is confined to certain well defined cateories, of which Parliament has been informed from time to time. Those are necessary in order to maintain the principle of discretion and to prevent it from being prejudiced by the criticism of arbitrary restriction of travel, which is created when a passport is refused.
Although the issue of passports is a discretionary power under the royal prerogative, it is as constrained as any statutory power might be, and the exercise of the discretion may be reviewed by the courts. The system has 490 worked well, and it has been generally accepted that, under successive Administrations, that exercise of the royal prerogative has not been abused.
Implicit in what the hon. Gentleman says is the notion that Governments are somehow secretive. My right hon. Friend the Chancellor of the Duchy of Lancaster is leading a review of unnecessary secrecy, and the Government will be publishing a White Paper in the summer. However, I am not convinced that a charge of secretiveness about the use of the prerogative can be made to stick. The hon. Gentleman may ask why, if we are that open, we do not write down what all the prerogatives are.
As my right hon. Friend the Prime Minister made clear in the written answer to the hon. Member for Nottingham, North (Mr. Allen), the relationship between statutory powers and prerogative powers can be very complex, especially if the wider definition of the prerogative to which I referred earlier is used, and it would be impracticable to list all the occasions when action was taken under the prerogative. For example, every time a passport is issued, it is in fact an exercise of the prerogative. It would have been just as difficult to enumerate every action taken under statutory authority. There is very eminent authority for this view in Wade and Bradley on constitutional and administrative law. The 10th edition states:Because of the diverse subjects covered by the prerogative, and because of the uncertainty of the law in many instances when an ancient power has not been used in modern times, it is not possible to give a comprehensive catalogue of prerogative powers".The scope of Orders in Council approved under the prerogative, on the other hand, is narrow. Most orders are made in exercise of statutory powers—that is, under powers delegated by Parliament. Prerogative orders consist essentially of: first, those recording the appointment or swearing of new Privy Councillors; secondly, and the largest number, those granting royal charters or approving changes to existing charters, which are made on the submission of the bodies themselves; thirdly, those directing the affixing of the great seal to proclamations —for example, proroguing or dissolving Parliament; and fourthly, those making certain appointments such as governors of the BBC.
Those orders represent less than half the total made by the Queen in Council. The remainder are made under statutory powers, and are subject to such parliamentary procedures as are specified in the relevant Acts. They arc in exercise of a delegated authority to legislate given by Parliament, not an expression of the prerogative at all.
The hon. Gentleman sees Crown immunity as an aspect of the prerogative. But the Government's policy on Crown immunity, as set out in the "Citizen's Charter" White Paper which deals with services to the public by Departments and Crown bodies, is to ensure that those bodies are not shielded from obligations placed upon others. That is consistent with the progressive removal of immunities from the health service. It is also consistent with the approach taken in the Food Safety Act 1990, which exposed the Crown to inspection and enforcement procedures, but not to criminal prosecution. A similar approach was followed in the Environmental Protection Act 1990.
The Government gave a commitment in the "Citizen's Charter" White Paper that the same approach would be 491 followed in similar future legislation, retaining immunities only for special reasons, such as the protection of national security.
At this point, I return to the hon. Gentleman's remarks about GCHQ. The Government's decision to remove the right of GCHQ staff to be members of the national civil service unions was taken because industrial disruption of GCHQ had been used by the national unions to put pressure on the Government in national civil service disputes. Between 1979 and 1981, 10,000 man days were lost disrupting an organisation whose continuous operation is vital to national security.
The Government's objectives remain unchanged since 1984. However, there have been discussions with the Council of Civil Service Unions to look for an alternative solution that would meet the concerns of all parties. The exercise of prerogative powers is subject to judicial review and I recommend that the hon. Gentleman reads the judgment of Lord Scarman in the GCHQ case. In general, if the question at issue is justiciable, the prerogative function will be subject to judicial review.
So the approach is a progressive one. Opportunities are being taken as they arise to bring the Crown within regulatory provisions applying to other bodies. Where the Crown is not at present bound by existing requirements, Crown bodies are expected to comply as though requirements applied to them whenever this is appropriate and practicable.
492 In any parliamentary democracy, the Government must not be above the law and are subject to parliamentary scrutiny. It is open to Parliament to restrict the prerogative powers exercised by Ministers further, if it wishes to do so, by introducing new Acts of Parliament. However, there is no sensible option of a blanket approach, as the hon. Gentleman would like to see. The case must be made and considered specifically, and in each area.
§ Mr. Garrett
The Minister trots out weasel words about the Government being able to remove prerogative powers as though it was democratic.
§ Madam Deputy Speaker (Dame Janet Fookes)
Order. We have a slight procedural difficulty. The Minister having sat down, the hon. Member cannot have a second bite at the cherry.
§ Question put and agreed to.
§ Adjourned accordingly at fifteen minutes to Three o'clock.