Tag Archives: Constitutional Reform and Governance Act

Reforming the royal prerogative  

Posted on by

The Brexit process raised questions about how – and in what areas – the royal prerogative should operate. Following a lengthy project, which has resulted in a new book on the subject and a Unit report – published today – on options for reform, Robert Hazell explains why the prerogative matters, and how it might be reformed to strike a better balance between parliament and the executive.

The royal prerogative has long been a mystery to most observers. I have now produced a book Executive Power: The Prerogative, Past, Present and Future to help demystify it. It was written with my former researcher (now a barrister) Tim Foot, and covers the whole range of prerogative powers, from going to war and ratifying treaties, appointing and dismissing ministers, regulating the civil service and public appointments, to the grant of honours and pardons and the issue of passports. The book’s 19 chapters provide a comprehensive guide to the operation of the prerogative – past, present, and future – together with suggestions for reform.

Working with us was another researcher, Charlotte Sayers-Carter, and Charlotte and I have distilled the key findings of our book into a much shorter report, Reforming the Prerogative. It selects just five powers, to illustrate the scope for reform through codification in statute, soft law, or by clearer and stronger conventions. This blog offers edited highlights from the book and the report, to explain why the prerogative matters; to illustrate this with a few prerogative powers; and to suggest ways in which it might be reformed.

What is the prerogative?

The prerogative derives from the original executive powers of the Crown. Over the years these have been overlain and superseded by statute, and most powers have transferred to ministers. The monarch retains the power to summon, dissolve and prorogue parliament; to grant royal assent to bills passed by parliament; to appoint and dismiss ministers. The main prerogative powers in the hands of ministers are the power to make war and deploy the armed forces; to make and ratify treaties; to conduct diplomacy and foreign relations; to grant peerages and honours; to grant pardons; to issue and revoke passports.

Continue reading →

Parliamentary scrutiny of international agreements should not be limited to legally binding treaties

Posted on by

Last week, the Constitution Unit published a blogpost which posed five key questions for the Conservative leadership contenders, one of which focused on rebuilding parliament’s scrutiny role. In this post, David Natzler and Charlotte Sayers-Carter argue that such scrutiny should include telling parliament about politically significant international agreements it has made and allowing for oversight and the expression of dissent.

On 11 May Prime Minister Boris Johnson signed bilateral security agreements with Sweden and Finland. At that time both countries were actively considering applying for membership of NATO, which they did together a week later, on 18 May. Once objections by Turkey to their membership had been dealt with, NATO agreed to these applications at its June meeting in Madrid. Now they have been admitted, the necessary amending Protocols to the North Atlantic Treaty will be laid before parliament. Under the terms of Part 2 of the Constitutional Reform and Governance Act 2010 (CRaG), it is usual practice that the government can ratify a Protocol unless there has been a parliamentary objection within 21 sitting days. NATO expanded to include the Baltic states in 2004, Montenegro in 2016 and North Macedonia in 2019. On none of these occasions was positive assent given by parliament; in the absence of dissent within 21 days of their laying, the Protocols were duly ratified. However, viewing the current circumstances as an ‘exceptional case’ to which the 21 day requirement can be disapplied under section 22 of CRaG, the government intends to proceed with ratification before parliament breaks for summer recess.

The 11 May agreements may have looked like stopgap measures, an interim bilateral version of the regime of multilateral mutual protection offered under Article 5 of the NATO treaty, but the Prime Minister explicitly said that they were not, and the leaders of both countries went out of their way to assert that the agreements would make their countries more secure. Although appended to both agreements were confirmations that they did not give rise to legally binding commitments under international law, they have been described as ‘solemn declarations’. While the UK might very well have been expected in any event to have come to the assistance of either country in an emergency if a request had been made, the situation following the signing of these agreements was different, in that there was a real prospect that British armed forces could have been actively engaged in coming to the assistance of these hitherto neutral countries as a fulfilment of these agreements.

Continue reading →

The evolution of MPs’ staffing arrangements: how did we get here?

Posted on by

The current system of recruiting and employing MPs’ staff is not one you would design if you were starting from scratch, but before considering an overhaul, it is useful to ask how we got here. In this blogpost Rebecca McKee, who is currently running a project on MPs’ staff, examines the evolution of MPs’ staffing arrangements, providing some context to the current arrangements so we can understand how best to reform them.

Speaker Lindsay Hoyle has called for a Speaker’s Conference to consider a major overhaul of workplace practices in the House of Commons. Under our current system, it is MPs – not the Commons – who recruit and employ their staff, within a framework of regulations set out by the Independent Parliamentary Standards Authority (IPSA). While the devolved legislatures and many other countries have similar arrangements, New Zealand stands out as an example where MPs engage staff employed by the parliamentary authorities. This triangular employment relationship is not without its own problems.

The Parliament’s People Awards in March highlighted some of the brilliant, difficult work these staff do. But for most people outside of the parliamentary bubble these staff, their roles, and their employment arrangements are largely unknown. 

MPs can claim a package of expenses through IPSA to support their work. This includes their own salary as well as expenses to cover the costs of running an office, a place to live in their constituency or London, travelling between parliament and their constituency, and employing staff. Currently, MPs can claim up to £237,430 for staffing. This sum is calculated by IPSA on the basis that it would cover up to four full-time equivalent (FTE) staff with a mix of roles and responsibilities. However MPs, as the legal employer of their staff, can choose to employ any number of people within this budget. The allowance, and the number of staff it is designed to cover, has increased over the years. Figure 1 shows a timeline of the evolution of MPs’ funding alongside other social and political changes.

Figure 1
Continue reading →

Partygate and the special advisers’ code of conduct: lessons for the new Downing Street Chief of Staff

Posted on by

Following the publication of Sue Gray’s report update, the Prime Minister announced his intention to reform the Downing Street machine. Robert Hazell, author of an authoritative study of the way special advisers work, argues that this presents an opportunity to revise the code of conduct that regulates their behaviour, and that incoming Chief of Staff Steve Barclay would be wise to take it.

Towards the end of his statement in the House of Commons on 31 January Boris Johnson said that he would ‘sort out what Sue Gray rightly calls the “fragmented and complicated” leadership structures of Downing Street’. He undertook to do two things:

  • create an Office of the Prime Minister, with a Permanent Secretary to lead Number 10.
  • review the civil service and special adviser codes of conduct to make sure that those codes are properly enforced.

Three days later Munira Mirza, the PM’s Head of Policy, resigned, swiftly followed by the resignations of Dan Rosenfield, the PM’s Chief of Staff, Martin Reynolds, Johnson’s Principal Private Secretary, and Jack Doyle, director of communications. On 5 February it was announced that the Cabinet Office Minister Steve Barclay was to be the new Chief of Staff. This blog is addressed to him, and the new Permanent Secretary in Number 10, as they consider what changes might be required to the Special Advisers’ Code of Conduct.  It draws upon the research done for a book by Ben Yong and myself, Special Advisers: Who they are, what they do, and why they matter, a year-long project including over 100 interviews with ministers, special advisers and senior officials.

The first point to make is that under the Ministerial Code and the Special Advisers’ Code of Conduct it is the PM who is responsible for the special advisers in No 10.  That is clearly spelled out in paragraph 3.3 of the Ministerial Code, and paragraph 9 of the Code of Conduct, which contain identical wording:

The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment.

The Ministerial Code goes on to say:

Individual Ministers will be accountable to the Prime Minister, Parliament and the public for their actions and decisions in respect of their special advisers.

And the Code of Conduct states:

It is also the appointing Minister’s responsibility to ensure that their special adviser(s) adhere to this Code of Conduct.

With the previous paragraph in the Code of Conduct reminding Special Advisers that:

Special advisers are bound by the standards of integrity and honesty required of all civil servants as set out in the Civil Service Code.

So there is no wriggle room here.  If special advisers in Number 10 have fallen below the required standards of integrity and honesty, the PM is responsible; and the PM is accountable to parliament and the public for their conduct. But the second point to make is that although the PM may be ultimately responsible, to expect him to look after the management of all of his special advisers is completely unrealistic. The PM is an exceptionally busy person.  So it is a responsibility which must be delegated: the rest of this blog considers, to whom.  Should the management and conduct of special advisers be the responsibility of the Cabinet Secretary, the Permanent Secretary, or the Chief of Staff?

Continue reading →

Brexit and parliament: treaties beyond the EU

Posted on by

In the latest extract from our joint report on Parliament and Brexit, Jill Barrett argues that the need for effective scrutiny of post-Brexit trade deals is high, and that parliament needs to develop mechanisms to better scrutinise the deals made by the government.

Leaving the EU means the UK is not only leaving the EU trading bloc and negotiating a new future relationship with the EU, but also leaving its global network of trade treaties – which consists of 41 trade agreements covering 72 countries. All of these will cease to apply to the UK at the end of the transition period (31 December 2020, unless extended by agreement). The UK’s trade with other World Trade Organization (WTO) member countries will then take place on WTO terms, except where there is a new trade agreement in place.

The UK government is seeking to ‘roll over’ the 41 existing EU agreements, by negotiating similar new agreements with the third states concerned. So far, only 19 replacement agreements have been signed and a further 16 are ‘still in discussion’. In some cases, notably Japan, the other state is not willing simply to replicate the terms that it has with the EU, but is seeking further concessions from the UK. Achieving a deal in all cases by the end of 2020 will be extremely challenging, and some may well take considerably longer.

Now the UK has an independent trade policy it can also seek new trade relationships with states that are outside of the EU’s treaty network. The government has announced that its priority is to negotiate bilateral trade treaties with the USA, Australia and New Zealand, and one may expect the next phase to include negotiations with major emerging economies such as China and India. All of these will raise matters of intense interest to parliament and the public.

What is parliament’s role in relation to the making of treaties? Treaties are negotiated, adopted, signed and ratified by the government using royal prerogative (executive) powers. In legal terms, parliament has two distinct roles. First, the government is obliged to lay a new treaty before parliament for 21 sitting days prior to ratification, under the Constitutional Reform and Governance Act 2010 (CRAG). In theory, this gives parliament the opportunity to scrutinise the treaty and object to ratification, by passing a resolution. An objection by the House of Commons (but not by the Lords) would block ratification. Secondly, if implementation of the treaty requires new legislation, parliament has the power to pass or defeat that legislation (or amend it, if it is a statute). If essential implementing legislation is blocked, this would normally stop the government ratifying the treaty. Continue reading →