Time to change the rule: Royal prerogative is an unaccountable power that must come out from behind the throne, says Jack Straw

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The Independent Online
THE MONARCHY is the subject of intense discussion everywhere - except in Parliament. The debate in newspapers and on television, in pubs and workplaces, has not been wholly about the Royal Family's private lives; much of it has been about serious issues: its public duties, whether Britain needs a monarch and, if so, what kind of monarch should it be.

Yet, from Parliament, the voice of the nation, there has been only silence. Why? Because the House of Commons is simply prohibited from questioning the conduct of the sovereign, and thus in practice prevented from discussing the future of the monarchy.

This rule is not Parliament's but the sovereign's. It is but one part of the royal prerogative - that most obscure area of what is too grandly called the British constitution. Its survival shows that Britain is still less of a democracy than almost any other Western nation.

The prerogative derives from the time when Britain was ruled according to the divine right of kings. Government ministers have inherited its powers, which allow them to rule virtually by decree in many areas not covered by statute. Those powers pre-date Cromwell and the 1688 constitutional settlement. They lie behind the near-absence in our constitutional arrangements of the kinds of citizen's rights that exist in the United States. 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.

Some of the prerogative powers are still exercised directly by the sovereign. A few honours, such as the Order of Merit, and the Orders of the Garter and the Thistle, are within the sovereign's personal choice. More importantly, there could be circumstances, typically with a hung parliament, where the sovereign would have to exercise his or her own judgement as to who could be Prime Minister or whether parliament could be dissolved.

Many other prerogative powers are formally exercised by the Privy Council - a minimum of five 'Right Hons' who, to expedite business, always meet standing up. In 1991 and 1992, 97 orders were made by the Privy Council under prerogative powers. Some read as if they came from Alice in Wonderland, or Gilbert and Sullivan. The 'Lord High Chancellor of Great Britain' is ordered to 'cause the Great Seal of the Realm to be affixed to a Proclamation this Day' - to say when bank holidays should be. Another order amended the 'Statutes of the Grand Priory of the Most Venerable Order of the Hospital of Saint John of Jerusalem'. These are the 'Knights of Malta', founded during the 11th-century crusades. A third order provided - with lots of 'Whereases', 'know yes' and 'heretofores' - the grant of a Supplemental Charter to Cheltenham Ladies College.

Much of the list is similarly quaint and relatively harmless, regulating merely the tinsel of the British establishment. But it includes other orders that are far more important: the order directing the issue of writs for the calling of a new parliament; orders reappointing governors of the BBC; and the Civil Service orders 1991. Neither the BBC, nor the Civil Service, it may surprise you to learn, has any statutory base.

As Erskine May, the 'bible' of parliamentary procedure, records, the legal existence of parliament itself 'results from the exercise of the royal prerogative'. 'All titles of honour are the gift of the Crown,' says Erskine May. To these fundamental powers are added others of scarcely less importance: the declaration of war, the conduct of foreign policy, the signing of treaties, the control, organisation and disposition of the armed forces, the Attorney-General's powers to stop any criminal proceedings. Appointments to, and employment conditions of, the Civil Service are determined under the prerogative - as employees of GCHQ found when their rights to be union members were peremptorily withdrawn by Margaret Thatcher. The Criminal Injuries Compensation Scheme was created entirely under prerogative powers - making Michael Howard's proposed cuts much easier than if it had been established under statute.

Even when ministers' powers are clearly laid down by statute, their accountability to the Commons is scarcely satisfactory. But where the royal prerogative is involved, their accountability is always far less. In some cases, Parliament may not even be told what is being done by executive decree.

Some questions can simply be blocked. A question asking what advice the Prime Minister had given the Queen as to the dissolution of Parliament was simply ruled out on the grounds that the Prime Minister was not responsible to Parliament for that advice.

As for the power to grant honours, there is no accountability to Parliament whatever. We can complain outside the House about how honours have been used to repay favours and donations to the Tory party, but the regular scrutiny of the honours system forms no part of Parliament's job.

Even where questioning is allowed it is inherently more difficult. Statutes may be dense texts, difficult to understand. But at least you can look them up. Further, they have received detailed examination by parliamentary committees, and the courts have often given clear rules as to how they should be interpreted. In contrast, the very definition of prerogative powers is obscure. Drawn from the mists of time, their encapsulation - and much of their enforcement - has been the responsibility not of any legislative institution, but of a few individual officers of state, principally the Clerk of the Commons (who edits Erskine May), the Secretary of the Cabinet, and the Queen's principal private secretary and other senior advisers. The courts can review the use of prerogative powers but, because these are so vague, only with difficulty.

Many statutes require ministers to make reports to Parliament, which in turn may provoke further questioning. Ministerial orders made under statute are subject to parliamentary scrutiny; orders made by the Privy Council are not. Many spheres in which the government exercises prerogative power are excluded from the Ombudsman's jurisdiction: the Attorney- General's powers, for example, and the pay and personnel matters of Crown servants.

Parliament does have the right to replace prerogative powers with statute. When it has done so there has been improvement in constitutional rights and in the accountability of the executive to parliament. Notable examples are the 1688 Bill of Rights, the Act of Settlement 1700-01 and the 1911 and 1949 Parliament Acts. More recently, both the Security Service and the Secret Intelligence Service have been placed on a statutory footing, with some limited parliamentary scrutiny, precisely because of the inadequacy of the old, prerogative-based arrangements for these services.

The question now is whether, in principle, we should say goodbye to the myth and mystery of the prerogative, and place all powers of government on a clear statutory base. The danger is that the legislative timetable would be jammed for years. But a start could be made, as the Labour Party paper A New Agenda for Democracy suggests, with declaration of war, and the ratification of treaties - as well as with the running of the Civil Service. The power to dissolve Parliament before a fixed term, and the ground rules for determining who should rule when no party has an overall majority, should also be the subject of explicit agreement by the Commons.

Bagehot made great play of the pre-Raphaelite mystique of Britain's constitutional arrangements. But that was in an age of deference, and of an homogeneous political elite. Today, deference has all but gone. The blinds should be drawn on the private lives of the Royal Family, but they should be opened wide on the prerogative powers that ministers exercise in the monarch's name. In a 21st-century democracy people must see what they get.

The author is a member of Labour's Commission on Democracy. His article is based on a contribution to Anthony Barnett (Ed): 'Power and the Throne', published this week by Vintage Paperbacks and Charter 88.

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