Stuart Weir & Andrew Blick (Cambridge & London, Democratic Audit): It's just like the buses. We have been waiting decades for reforms to the Royal Prerogative, now three are to appear at once. But don't hold your breath. At the end of January the government is due to publish its draft constitutional reform bill - or, as they sometimes describe it, the 'Constitutional Renewal Bill'. If only. When it appears we will know for certain about a number of key decisions relating to the reform of the Royal Prerogative, under which ministers can act without being subject to proper democratic accountability. Various campaigners have been struggling for many years to make this range of powers - which includes within it war-making, treaty-making, the conduct of diplomacy, regulating the Civil Service and granting mercy - subject to parliamentary oversight. But how far will the government go?
First, do they intend to give Parliament a statutory right to approve (or disapprove) war-making and the disposal abroad of the armed forces? Since the illegal invasion of Iraq, a convention may now be developing that ministers should usually seek the approval of MPs in advance of military action, but it is by no means firmly established. In its consultation paper the government showed that it favoured continuing with this informal approach, which produces a degree of flexibility open to abuse by the executive (see, for example, the escalation of UK troop numbers in Afghanistan). My guess is that war powers will not be in the draft bill.
Second, how meaningful is the plan to give Parliament a statutory role in the ratification of treaties? The government looks set simply to enshrine in an Act of Parliament the existing 'Ponsonby Rule', which rarely leads to treaties being debated, let alone voted upon. And there is apparently no intention to alter the way in which diplomacy is conducted under the Royal Prerogative, meaning that by the time MPs learn about the negotiation of a treaty it is too late to influence it.
Third, will Brown really abandon his predecessor's aversion to placing the Civil Service on a statutory basis? This particular reform has received little attention but is of historic significance. It was first called for in the Northcote-Trevelyan report as long ago as 1854, so the government cannot be accused of knee jerk-policy making here. There may be difficulties in reconciling the role of partisan special advisers with the party political impartiality of Whitehall. I doubt there will be any attempt to address the broader issue of the way in which the Prime Minister can constantly reorganise the machinery of government under the Royal Prerogative without any need to consult Parliament.
Further clues as to the likely fate of Gordon Brown's constitutional reform programme will be contained in the draft bill and events around it. We will get an idea as to how serious he is about extending reform of the prerogative beyond the immediate issues of treaties, war powers and the Civil Service. And the way in which the draft bill is handled - how the government holds and responds to consultations, how thoroughly Parliament scrutinises it - will bode well or badly for other upcoming processes around national principles, rights and responsibilities and possibly a codified constitution.
One further matter of constitutional importance. Next Tuesday the government is set to declare that it has secured a public mandate to build a new generation of nuclear power stations after a flawed consultation exercise conducted by a market research company close to the Labour party. The information presented to the public was inaccurate and the questions loaded. Last February the government was ordered by the courts to repeat a previous consultation exercise after a high court judge ruled that it had been unlawful. An independent group of scientists and academics has just published a damning report on the current exercise's unwillingness to address vital questions on the disposal of nculear waste, radiation risks, etc, and on a narrow approach designed to elicit 'particulr and limiting answers'. Greenpeace, who took the government to court over the previous exercise, is poised to renew its legal challenge when the government's statement and energy bill are published. Should we really have to rely on the courts to ensure good and democratic governance?
