The Government is grateful for the useful work the Committee has undertaken on this subject. It acknowledges the importance of the subject matter, and recognises that the main recommendation takes full account of the difficult and sensitive nature of many of the issues, by recommending only further, government-led, work in the areas identified.
As the Committee report recognises (paragraph 10), Parliament is by no means powerless in the face of the prerogative. Numerous powers once exercised only on the authority of the prerogative have now been replaced by statutory powers. Parliament's general authority as the ultimate sovereign body and source of the Government's right to govern also ensures that any government needs to take seriously Parliament's concerns over the exercise of its prerogative functions. The Government accepts and welcomes scrutiny of any of its actions, including those taken under the prerogative.
The Government also welcomes the Report's recognition of the difficulties of abolishing the prerogative. It agrees with the Committee's assessment that the prerogative offers much needed flexibility to govern, and is a well-established part of the constitution, and that Ministers need executive powers which enable them to react quickly in possibly complex and dangerous circumstances.
The Government also accepts that in many respects the prerogative is a historical anachronism. As recent history has proved, it is possible, and sometimes desirable, that it should be replaced by either statute or conventions on parliamentary scrutiny where circumstances make that appropriate. The Government has already moved considerably in this direction. As well as the changes cited by the Committee itself in paragraph 10, the Government has introduced the Human Rights Act 1998, which has significantly extended the judicial constraints on the exercise of Ministerial discretion under the prerogative.
The Committee's single recommendation is:
Without prejudice to its response to the Executive Powers and Civil Service Bill now before the House of Lords, the Government should initiate before the end of the current session a public consultation exercise on Ministerial prerogative powers. This should contain proposals for legislation to provide greater parliamentary control over all the executive powers enjoyed by Ministers under the royal prerogative. This exercise should also include specific proposals for ensuring full parliamentary scrutiny of the following Ministerial prerogative actions: decisions on armed conflict; the conclusion and ratification of treaties; the issue and revocation of passports. (paragraph 60)
This response looks first at the three issues singled out in the recommendation, before turning also to some of the other issues raised in the body of the Report.
Decisions on armed conflict (paragraphs 18-23)
The Report refers to the number of witnesses who suggested that the powers of Parliament over decisions to engage in armed conflict needed to be increased, given the modern conditions in which such issues arise. The Government notes that even those witnesses in favour of the extension of parliamentary authority in this area recognise the difficulties, both of definition (when would the requirements be triggered) and timing (in emergency situations). The Government's view is that the pragmatic approach, allowing the circumstances of Parliamentary scrutiny to reflect the circumstances of the armed conflict, continues to be the more effective approach.
The Government is accountable to Parliament for any armed conflict it engages in, as for anything else, and the Government have given repeated assurances that Parliament would be given an opportunity to debate and scrutinise decisions about the deployment of British forces in armed conflicts overseas. Furthermore, the Government is also mindful of the need to keep Parliament closely informed of developments during the course of a conflict through statements and adjournment debates, as necessary. As the Report notes, arrangements which allow for our involvement in armed conflict to be debated and scrutinised by Parliament after the event are by no means unique to the UK.
Treaties (paragraphs 24-26)
The ratification of a treaty is a function of the executive, acting on behalf of the Crown under its prerogative powers. Parliament already has considerable opportunity for scrutiny, since the text of every treaty to which the UK is a party subject to ratification or its equivalent is laid before it for consideration and, if Parliament so wishes, for debate. Since 1997 the Government has ensured that such texts are accompanied by an Explanatory Memorandum to make the purpose and effect of the treaty clear. This information is also available on the Internet.
Further opportunities for debate arise where the provisions of a treaty need to be implemented in UK law, when either primary or secondary legislation is required if this is not already in place (as the Report acknowledged at paragraph 25). The Government does not, as a matter of general policy, move to ratify a treaty unless the required legislation is in place, since this could put the UK in a position where it was unable to fulfil its obligations under international law. Even where legislation is not required to implement a treaty, Ministers are accountable to Parliament in exactly the same way as for any other area of policy.
While the Government remains committed to considering ways of improving the efficient and effective scrutiny of treaties by Parliament, introducing the Committee's provisions might not only delay the ratification process, but could also be a substantial burden on Parliament's time, without materially adding to the scrutiny that Parliament is already at liberty to make.
The Government will however reflect further on the Committee's recommendation in this regard.
Revocation of passports (paragraph 31)
The Committee quotes Lord Lester's contention that the Ministerial power to grant or revoke a passport may have human rights implications and is 'entirely anomalous'. Passports are issued under the prerogative by or on behalf of the Secretary of State. However, Ministers in successive Governments have pointed out that there are non-statutory rules about refusing or withdrawing a passport to a citizen, which have been reported to Parliament from time to time. Refusal or withdrawal of passport facilities is rare and cases are considered on individual merits. Action taken by Ministers over passports is open to scrutiny by the courts. The possibility of introducing a statutory right to passports has been debated in Parliament in the past, but successive Governments have taken the view that the non-statutory system has worked well and that change is not required.
Other issues
The Report refers to concerns raised by some witnesses in relation to the civil service (paragraph 27), machinery of government changes (paragraph 28) and public appointments (paragraph 30). The Government notes that the Committee did not think the case for increased scrutiny of the use of prerogative powers in these areas was sufficiently strong to be singled out in their recommendation.
Civil Service
As the Report acknowledges, the Government has responded to a previous Report on the civil service by announcing its intention to publish its own draft Bill for consultation in this parliamentary session. In preparing that Bill, it will take into account the views expressed in both Houses, the PASC Report and Bill, and Lord Lester's Executive Powers and Civil Service Bill, to which the recommendation refers.
Machinery of Government changes
The Government would not wish to fetter the Prime Minister's powers to organise the business of government as circumstances demand, as it considers it is essential that Governments can respond flexibly to changing priorities. It agrees with the Committee that any statutory requirement to consult Parliament over such changes would be cumbersome, potentially embroiling Parliament in questions of strategic management that are best left to Ministers.
Public appointments
The Government notes the Committee's reiteration of their view that Parliament should play a more effective role in the most important public appointments. As stated in its response to a previous Report from the Committee, the Government considers that existing arrangements provide sufficient scope for Parliamentary involvement without giving the perception of politicising appointments (Government Response to the Public Administration Select Committee's 4th Report of the Session 2002-3, "Government by Appointments: Opening up the Patronage State" (HC 165), Cm 6056, December 2003, paragraph 20).
Honours system and Privy Council
The Government notes the Committee's new Report on the honours system and will respond in the usual way. It reminds the Committee that it is already carrying out itself a fundamental review of the Honours system.
Conclusion
The Government acknowledges the useful work that the Committee has undertaken on this subject. The Government accepts and welcomes scrutiny of any of its actions, including those taken under the prerogative. However, it is not persuaded that the Committee's proposal to replace prerogative powers with a statutory framework would improve the present position.
Ministers are already accountable to Parliament for action taken under prerogative powers, as for anything else. The use of prerogative powers is subject to scrutiny by Departmental Select Committees. Additionally the Prime Minister is subject to twice yearly questioning by the Liaison Committee. It is for Ministers to account for and to justify their actions to Parliament and for Parliament to hold Ministers to account. Such accountability is in itself a form of control exercised by Parliament over the executive.
It is long established law that Parliament can override and replace the prerogative by statute, where the individual circumstances make that appropriate. There have been a number of examples in recent years where such a change has been made, for example in the Regulation of Investigatory Powers Act. Parliamentary scrutiny and accountability can also be increased without statutory provision. The rules on scrutiny of EU proposals and the recent developments in parliamentary debate on armed conflict are examples of this.
The Government therefore agrees that it is often possible to make out a case for either the transfer of prerogative powers to a statutory basis, or for an increase in the level of non-statutory parliamentary scrutiny. It continues to believe, however, that these changes are best made on a case-by-case basis, as circumstances change. It does not therefore agree with the recommendation for a wide-ranging consultation exercise. This could only result in a snapshot at a fixed moment of what is inevitably a fluid and evolving situation.
