Executive Power

– in the House of Commons at 1:45 pm on 10th May 1995.

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Photo of Graham Allen Graham Allen Shadow Minister (Transport)

This week we have been celebrating the victory 50 years ago of democracy over fascism. Sadly, however, there has been little contemplation in the Chamber, no debate on the fundamentals of democracy, the clash of philosophies or even a step back to take stock and discuss the future of our political system. In a different context, the director general of the BBC recently called on the media to devote as much time to reflection as to antagonism—words which could equally apply to our own Parliament, the forum of the nation.

It is Parliament's failure to carry out a serious and regular MOT on our democracy which so vividly illustrates that our legislature, and even its agenda, is the creature of the Executive. In no other western nation is the Executive, the Government, so dominant. It is as if the democratic revolutions of the United States, France and elsewhere have passed us by, and the keystones of democracy, a separation of powers and checks and balances, are irrelevant to our own country. Hence, we have a unitary state rather than pluralist one, stagnant one-track politics instead of an active diversity which continually guarantees and renews our political evolution. The textbooks may say that Parliament is meant to be sovereign, but the reality is that Parliament is controlled by the Executive and, for our country, that spells Executive sovereignty.

In the United Kingdom, the leader of the Executive, in the shape of the Prime Minister, controls the appointment of the Cabinet, commands a majority of the legislature, appoints the members of the judiciary and the second Chamber and controls the spending and even the structure of local authorities, all uninhibited by a Bill of Rights or a written constitution. Those untrammelled powers would make a starling salivate and, in the wrong hands, have wrought massive, uncheckable destruction on our social fabric. The Thatcher years proved beyond doubt that our democratic culture, good as it is, must be bolstered by democratic institutions resilient to those who would seek to abuse our democracy.

The democratic socialist answer must be to replace one-track politics with pluralism and to hear all the voices, some of which may be our salvation. I am particularly pleased that the Labour party recently, for the first time in its history, decided to put such a commitment into its constitution—a commitment to an open democracy, in which Government is held to account by the people; decisions are taken as far as practicable by the communities they affect; and where fundamental human rights are guaranteed". That is now the commitment of my party. I hope that the Conservative party, should it ever have a constitution, will adopt a similar view.

My party is now pledged, through successive leaders and successive decisions of our party conference, to create a new democratic settlement, including a Bill of Rights for British citizens, an elected second Chamber, free local authorities, assemblies for the regions and nations of our union, a diversity of electoral systems, an effective House of Commons, an accountable Europe and a revitalised judiciary. The next Labour Government will be remembered for nothing unless it is remembered for changing for good the way in which we govern ourselves. The whole of that agenda is, in essence, designed to tackle the problems of unrestrained Executive power in the United Kingdom. We can do that in two ways—first, by putting in place the checks and balances that are central to a separation of powers, and, secondly, by directly curbing the size and scope of the Executive itself.

I should make it clear that in referring to Executive power, I refer specifically to that authority nominally found in the Crown, but in reality exercised by the Government of the day. I do not refer here to the residual power of the Queen and the royal family, or to their status as royalty. Some of the most ardent centralisers and woolliest thinkers in that area would have us attack the soft target of the Queen rather than confront the key sources of political power. It is the inherited use by Government of that Crown or prerogative power which lies at the heart of the strength and overdominance of the Executive. As my hon. Friend the Member for Blackburn (Mr. Straw) recently said: The prerogative is all about the power of Government over the people and virtually nothing to do with the power of the people over Government. The reality is that today a massive hinterland of power is exercised by Executive decree without accountability to Parliament, and sometimes without even the knowledge of Parliament. That is extra-parliamentary activity writ large indeed. In practice, after using Executive power in a high-profile policy area, Governments will often seek to come to the House to give some parliamentary window dressing to a decision already taken in the corridors of Whitehall and No. 10 Downing street. That window dressing, however, limited though it is, is entirely voluntary and at the whim of the Government rather than a right of Parliament—a right of the legislature.

A recent example was the renewal of the royal charter of the BBC. The Government will kindly allow the House some sort of debate. They will find a contrivance so that Members of this Chamber and the other place can discuss the issue. However, we shall not be allowed to amend or reject the charter because that comes under the royal prerogative.

In certain areas of foreign policy, such powers are absolute. For example, agreeing to treaties is currently a matter for prerogative power, not for Parliament. It can be argued that the Maastricht treaty need not even have come before the House until consequential legislation was due. Treaty after treaty is concluded without the formal consent of Parliament. Foreign policy as a whole is almost a democracy-free zone, free of democratic control and accountability.

Powers devolving from the Crown, free from parliamentary scrutiny, are vested in Ministers and go virtually unchallenged. The Scott inquiry has revealed that Ministers can even write their own sick notes to mask errors and omissions concerning matters such as by the use of public interest immunity certificates. It is here that parliamentarians need to refocus the debate.

The threat is not to a mythical parliamentary sovereignty from Europe or Maastricht. The focus must be on restoring the strength of Parliament in the face of its domination by Executive sovereignty. Again, as parliamentarians, our task is to expose what little power Parliament has in the face of Government by Executive decree.

The Executive is generally free to bind the country under international law regardless of the express wishes of Parliament. These powers have effectively privatised us out of our democracy and all of them need to be placed under the public ownership of our representative institutions. Such powers should no longer be the personal and private domain of Ministers; there should be accountability to us in the House.

Treaties can be negotiated only by the Executive—we all realise that—but the power to ratify them should lie with our democratically elected representatives, as it does in virtually all other democratic cultures in the western world. Going to war is another deeply significant issue, but that, too, is a matter for prerogative power—not for the House, but for Whitehall and No. 10—when it should be in the parliamentary domain. Although it is usually debated after the event, no Government of any political colour have a duty to obtain the consent of Parliament before going to war, as has been illustrated by the Gulf war, the Falklands war and the war in Bosnia.

I accept that, in a national emergency, the Government may be forced to act without the immediate consent of the House, but there should be safeguards to ensure that, if British service men and women are sent into battle, there will be adequate debate about the reasons for the decision. Formal ratification by Parliament of Executive action is the minimum that should be accepted in a modern democracy. The technical device of squaring one or two members of the Privy Councillors freemasonry is no longer an appropriate substitute for public scrutiny by democratically elected institutions.

The Privy Council is one of the many devices that have been used successfully over the years to assimilate politicians of all parties into the Executive culture. The seduction of "One day, all this will be yours" must be replaced with a clear moral and political stand for democracy; without that, the core of our democracy will remain on shaky ground.

The bible of our unwritten constitution, "Erskine May", says: The prerogatives of the crown, in connection with Parliament, are of paramount importance. The legal existence of Parliament results from the exercise of the Royal Prerogative. To a Queen's writ the House of Commons owe their election as representatives of the people. Similarly, Parliament is dissolved by the Queen, acting on the advice of the Prime Minister but using prerogative powers that cannot even be questioned in the House.

Honours are doled out without a nod to our elected representatives. Institutions as important as the BBC—which I have already mentioned—and the civil service are the creation of Executive power, with no statutory basis agreed by Parliament. Given such a system, and the arrogance of Ministers grown fat on 16 years of unchecked authority, we are beginning to see developments such as that involving the current Home Secretary, who was caught red-handed trying to abolish the criminal injuries compensation scheme without parliamentary consent. But for the vigilance of the Fire Brigades Union and others—and the Law Lords—he would have got away with it.

The accountability of Ministers to Parliament, under statute, is already tenuous enough; accountability without statute is virtually impossible. In a modern democracy, it is no longer sufficient for matters of such potential importance to be dealt with on the basis of hearsay and secrecy. We need to define—openly, publicly and in writing—the institutions of the state, their role and their inter-relationships. That can best be done by means of a systematic definition and creation under statute of all the most important prerogative powers. We must bring the rule of law—statute law—to the conduct of Government.

That has occurred quite recently in the case of the security services, and civilisation as we know it has not collapsed because the security services now operate under statute law rather than prerogative power. If that example is extended to the other activities that I have mentioned—treaty making, war, the civil service and the dissolution of Parliament—it will necessarily end the vagueness surrounding such powers, and restrict their exercise by increasing their transparency and the accountability of those involved.

Although these immense extra democratic powers will fall to the Labour party after the next general election, the acid test of our commitment to a devolved and pluralist democracy will be whether we resist the temptation to abuse them as the current Government have and instead ensure that they are legitimised in statute law and irrevocably placed within the democratic arena. It is conceivable that the incoming Government could introduce all the other elements of our democratic agenda, but then fail to tackle Executive power. If we do not do that, we shall merely count the days before the centre of a unitary state—perhaps still under the control of a Labour Government—erodes the effects of a wider reform package, and regathers effective control.

The unitary state, controlled by an unchecked Executive, is a political system that has demonstrably failed in the 1980s and 1990s; it must be replaced by a pluralist, democratic system. That is the best way in which Parliament and parliamentarians could honour those who, 50 years ago, gave their lives for our democracy.

Photo of John Horam John Horam , Orpington 2:16 pm, 10th May 1995

The hon. Member for Nottingham, North (Mr. Allen) has done a service to the House, but he is not right in saying that the subject has never been debated. It was debated two years ago, in 1993, and some of his arguments—as well as some of those that I shall advance in rebuttal—were aired then. The matter has also been touched on in subsequent debates, so it is not an entirely debate-free area.

The hon. Gentleman deserves considerable credit for producing, in January, a pamphlet entitled "Reinventing Democracy". It is a major work, including everything about democracy except the kitchen sink. I was slightly disappointed to see that Madam Speaker was not in the Chair—I am making no personal reference to you, Mr. Deputy Speaker—as I intended to say, "We authors, Ma'am", since I have also produced a pamphlet, though on a different subject: it is called "The Competitiveness of Britain", and it was published about a year before the hon. Gentleman's.

I am aware of the hard work and lack of appreciation involved in the production of such pamphlets, and I congratulate the hon. Gentleman on his production of a volume which—having read it—I consider robust and coherent. I must add, however, that although I agreed with a great deal that the hon. Gentleman wrote about the procedures of the House in the section concerning parliamentary democracy, I had to dissent from many of his conclusions. That will not surprise him.

As the hon. Gentleman knows, having conducted research for his pamphlet and the debate, the powers of the royal prerogative—as he pointed out, we are talking of the prerogative as exercised by the Government, not any residual powers of the royal family—have a long history. They are, in effect, a residual item: as parliamentary power spread over almost the whole area of authority, that was left by custom and practice because it was not felt necessary to take it over. Some rather piquant phrases are used: "the undefined residue", for instance, and "the attenuated remnant". We are talking about a small element of our total power structure—in fact, all that is left following the gigantic spread of parliamentary power which has rightly taken place over the centuries.

Secondly, despite the hon. Gentleman's remarks, things have not changed a lot since 1979. One would think that, somehow or other, there had been a great diminution of parliamentary power over the Executive since 1979. In fact, the contrary is the case: things were much the same before 1979 as they are now. The hon. Gentleman mentioned that only last year the intelligence services were brought within statutory control. That example shows that the element of prerogative has been reduced in this Government's lifetime. Far from standing still and being no better than the last Labour Government, we are considerably better in some respects. We have recognised where in some degree it is necessary to take over the prerogative, and we have done so.

Thirdly, despite the existence of this small residual item of Executive power, Parliament is still sovereign. Parliament's power is unlimited. We can take whatever power we want. That is the prerogative of the House. It is what parliamentary sovereignty is all about. We can enforce such measures, as far as our writ runs. It is true that small items of the prerogative still exist, but they are subject to the overriding power of Parliament, which we can exercise at any time.

Fourthly, "If it ain't broke, don't fix it." That is part of the reason why many items still remain as part of the prerogative and are exercised by the Executive. It simply makes sense for them to remain so. The issuing of passports, for example, is done by prerogative, and not on a statutory basis. Whichever party is in power, the Government of the day sometimes need the discretion not to issue a passport for certain reasons. That is well understood. It is handled in a sensible and sensitive way. I—and, I am sure, the hon. Gentleman—have never had any particular problems as a result of the practical application of that prerogative.

It is not necessary to bung up the House of Commons with legislation designed simply to change the formality of such things when in practice they work well as they are. As the hon. Gentleman said in his pamphlet, quite enough legislation goes through the House already. We do not want even more going through, which would be designed nominally to change the status of something that in practice is working extremely well. The hon. Gentleman will face that problem if he tries to implement his pamphlet.

At the end of the pamphlet, the hon. Gentleman helpfully gives a programme for the first, second, third and fourth years of a potential Labour Government—an ambitious thing to do, as we may never get a Labour Government. The pamphlet has already got the first four years mapped out. He wants four items to be put through in the first year. Frankly, if he were able get all that through, it would produce parliamentary gridlock. Little else could be passed.

The hon. Gentleman was not a Member of the House when the Labour Government tried to put through Scottish devolution. If he consults his colleagues who were in the House at that time, he will find that an immense amount of effort goes into even one small constitutional change of that sort. He wants major constitutional change on many different fronts. He would find that that would have a time-consuming effect that is out of all proportion to what he may imagine.

The hon. Gentleman is perhaps over-egging the pudding rather a lot when he talks about the unaccountable nature of Executive power. In fact, it is accountable. Changing it would mean changing only some of the formal positions involved, not the reality of how power is exercised. The hon. Gentleman said that in some sense Ministers were not properly accountable for actions under the prerogative. He is clearly mistaken about that. I should like to make that point in case any misunderstanding exists.

Wade and Bradley, the Bible, if I may put it like that, of administrative law is unambiguous on that point. It states: Except in those special circumstances where prerogative powers involve the personal discretion of the sovereign"— the hon. Gentleman will agree that we are not talking about that— prerogative powers are exercised by or on behalf of the Government of the day. For their exercise, just as for the use of statutory powers, Ministers are responsible to Parliament. In practical terms, that means that, even where Ministers exercise prerogative powers or powers under the prerogative, they are still answerable to the Parliamentary Commissioner for Administration. One can make a complaint against a Minister for maladministration, whether he exercises powers under statutory obligations or under a prerogative. Similarly, the exercise of the royal prerogative is judicially reviewable—provided, of course, that the matter in question is justiciable. On those grounds, Ministers are accountable for the use of the prerogative, just as much as they are under statutory law.

The hon. Gentleman made a number of points about the use of the prerogative by the Government. One particular point involved the British Broadcasting Corporation and royal charters. The BBC would be reluctant to have the position changed, because one of the things that protect the independence of such institutions is the fact that they exist under royal charter. In many ways, that is a better protection than being brought under statute law and therefore being susceptible to changes following political decisions in the Houses of Commons or the House of Lords.

The hon. Gentleman made the point that, in emergencies in relation to war and making treaties, Governments must act, but more so in relation to war. He said that there should be a process of ratification subsequent to decisions being taken. That is a poor substitute for what, in practice, has happened.

The hon. Gentleman began by recalling that this weekend we celebrated the 50th anniversary of VE day. With great affection and gratitude, he remembered the events of 50 years ago, but he will also recall the events of 55 years ago, when the last war started. Matters were determined in the House. The Prime Minister was changed as a consequence of pressure from the House of Commons, and the whole conduct of the war possibly changed because of the debates that took place here.

Post hoc ratification is no substitute for the sort of debates that should and do take place in the House, as they did in the second world war and, subsequently, during the wars in the Falkland Islands, Bosnia and the Gulf. In practice, the hon. Gentleman's demands are met by the sort of procedures that we traditionally follow in the House.

None of my hon. Friends would seriously agree with the hon. Gentleman that somehow or other treaties are agreed to in the House without any particular remonstrance or debate. We spent a great deal of time in Parliament discussing the Maastricht treaty, which I believe is branded on the souls of some of my hon. Friends who had to speak in those debates. They went on so long and it was a close run thing, as the hon. Gentleman is aware. No doubt the Opposition can defend their actions in that debate, although at times it seemed as though they were voting against what they believed in.

Photo of John Horam John Horam , Orpington

I can certainly defend my position on Maastricht. No one could seriously complain that there was a lack of debate on that. Similarly, other treaties that have come before the House have been thoroughly debated.

The current position is sensible. It has been improved, where possible, by the Government. The hon. Gentleman may be aware that even Al Gore's specialist advisers said the other day that this country is in the forefront of the world movement towards reinventing government. We can take credit for the fact that, with the possible exception of New Zealand, no other country and no other Government have done as much to reinvent government as our Government have done. We are well ahead of other countries in that regard.

I should be amazed if implementing some of proposals in the hon. Gentleman's pamphlet led to an improvement in democracy. At the heart of his proposals are no fewer than six different tiers of democracy—including not only parish, district and county councils, but regional assemblies and a European Parliament to which he would give additional initiative and powers. That would not be more democracy: it would be gridlock.

It being half-past Two o'clock, the motion for the Adjournment of the House lapsed, without Question put.