On 10 June this year Gordon Brown, in the course of explaining to the Commons how he intended to respond to the MPs expenses crisis, said that ‘I personally favour a written constitution.' He thereby became the first sitting British Prime Minister publicly to express such a desire. An historic moment. But one which - like many other initially promising democratic reform proposals made since Brown moved into No.10 - has not been followed up.
The Ministry of Justice paper Review of the Executive Royal Prerogative Powers, published on Thursday, demonstrates that there is no serious commitment within government to realising the idea that Brown floated in June. At the heart of the ‘unwritten' - or as it might better be described, un-codified - UK constitution is a set of executive powers known as the ‘Royal Prerogative'. They feature strongly in the recent Democratic Audit pamphlet, The Unspoken Constitution, which sets out in tragi-comic form the existing UK settlement as it works in practice, but as no-one in official circles would like openly to admit.
Though a relic of personal monarchical rule, the Royal Prerogative is now wielded largely by ministers (in particular the Prime Minister) and officials. These authorities have never been framed in statute by Parliament, nor is their any formal requirement for parliamentary consent to their exercise. The potential for judicial review of the use of these powers is circumscribed. Consequently, the government is constantly carrying out a wide range of significant activities without being subject to satisfactory democratic oversight. Though no-one, not even the government, is precisely sure of its exact extent, actions covered by the Royal Prerogative include deploying the Armed Forces; making and ratifying treaties; issuing and revoking passports; conducting diplomacy; organising the Civil Service; granting honours and peerages; and appointing ministers.
Any serious attempt to introduce the ‘written constitution' the Prime Minister has said he favours would entail a wide-ranging process to define precisely, limit and legitimise these powers, bringing them within the clear democratic and judicial framework that is at present lacking. In July 2007 the argument for doing so appeared to have been won. A government Green Paper on democracy, The Governance of Britain, proclaimed that ‘In a modern 21st century parliamentary democracy, the Government considers that basing...powers on the prerogative is out of date... in general the prerogative powers should be put onto a statutory basis and brought under stronger parliamentary scrutiny and control.' But since then progress has been slow and limited. Certain Prerogatives were ruled out of consideration from the beginning.
This exclusion extended to the power, still wielded personally by the monarch, to select the Prime Minister. In the circumstances of a hung Parliament, with more than one credible candidate for the role, this choice becomes live, as does the potential for an attendant constitutional crisis, since there is no clear guidance as to how the decision should be made. From the point of view of democratic principle, it is the elected House of Commons, not the Queen or King, that should determine who forms a government.
Some changes are underway, giving Parliament more of a role in such areas as treaty ratification, war-making and management of the Civil Service. But on closer scrutiny, these enhancements to democratic oversight of the executive are less than they might seem at first glance. For instance, proposals for parliamentary approval of the deployment of troops in armed combat look likely to grant government with excessive discretion in how it acts, and will not be set out in statute, but in a parliamentary resolution, rendering them weaker.
Alongside these developments, the government conducted a broader internal review to identify the powers it possessed and consider the options for reform. It was carried out between November 2007 and May 2008, but the consequent report took much more than a year to appear. The conclusion of Review of the Executive Royal Prerogative Powers is that ‘it is unnecessary, and would be inappropriate, to propose further major reform at present.' The most that is on offer is a commitment from the Justice Secretary, Jack Straw, to further investigate the use of the Royal Prerogative in the granting of pardons.
From Gordon Brown's endorsement last June of a ‘written constitution' there has now been a shift to the assertion that ‘Our constitution has developed organically over many centuries and change should not be proposed for change's sake'. While ‘Some of the remaining prerogative powers could be candidates for reform...their continued existence has...no significant negative effects. In many cases it is positively useful.' But the lack of a transparently democratic constitution - to which the persistence of the Royal Prerogative makes a major contribution - is a ‘significant negative' effect in itself. And the Royal Prerogative may well be ‘positively useful' - but to whom? In answering this question, it is also possible to explain why the review of the Royal Prerogative has ended in this way.
In a narrow, short-term sense, it is convenient to those within the executive - both officials and ministers - to be able to act with a minimum of outside involvement or scrutiny. The Royal Prerogative helps provide this discretion. The review into its operation was conducted in-house, with no external contributions actively solicited. The paper issued yesterday is described in its title as the ‘Final Report' and the Introduction tells us that ‘This report is not intended as a formal consultation paper, since it makes no new proposals for reforms on the prerogative.' In other words, the executive has asked itself whether it would like to carry on operating in the same discretionary, unaccountable way it has always done, and concluded that it would, so there is no need for anyone else to get involved.
The main body of the report contains a series of excuses for maintaining current arrangements. The power to organise and manage the Armed Forces should be retained under the Prerogative because to change this arrangement would be ‘a highly complex and lengthy undertaking'. The Prerogative power to act in emergencies - which we were once led to believe would be supplanted by the Civil Contingencies Act 2004 - apparently has to be retained ‘for use in cases of particular urgency or disruption where the statute may not operate effectively.' Granting Royal Charters under the Prerogative will be retained because ‘The Government is not persuaded that the power needs to be abolished or replaced.'
Reviewing the idea of the BBC being maintained by Royal Charter might be a good idea in principle, but since ‘The decision to retain the BBC's Charter...was reached recently...The Government sees no merit in reopening the question now'. The power for ministers to call public inquiries under the Prerogative will be retained because ‘the abolition of non-statutory Inquiries would risk increasing procedural and cost burdens'. So it goes on, Whitehall institutional inertia almost lapsing into self-parody.
The Review paper could be seen as the final end for the chance, first raised in July 2007, that the Governance of Britain programme might lead towards a codified UK constitution. While this outcome does not reflect well on Brown personally or the government in general, others deserve criticism too. It was hoped by some that the expenses scandal last spring would generate wide momentum for an overhaul of UK governance. But it has not worked out that way. There was a dabbling with this issue earlier in the year. But the parties and the media - which have almost wholly ignored the publication of the Review - have now largely lost interest. Expenses are judged a sexy enough issue to merit interest; the Royal Prerogative is not.
But when the UK is compared to other democracies, the most exceptionally problematic feature which emerges is not corruption amongst politicians - which is internationally widespread - but our almost uniquely uncodified constitution. As Gordon Brown stated in June ‘It is for many people extraordinary that Britain still has a largely unwritten constitution.' Unfortunately at present this bizarre and unacceptable arrangement looks likely to persist. It will continue to do so until a serious attempt is made to democratise the powers currently held under the Royal Prerogative, not in a piecemeal fashion, but as a whole.