Tuesday, 21 June 2011

Role and Powers of the Prime Minister, House of Commons Political and Constitutional Reform Committee

The House of Commons Political and Constitutional Reform Committee has recently been taking evidence in the course of its current enquiry into the role of the Prime Minister in the British political system.

In this post, I want to highlight some of the main themes that emerge from this expert testimony.

The office of Prime Minister is a relatively recent innovation

It is generally known that the term 'Prime Minister' was originally regarded as pejorative, and that the first British PM, Sir Robert Walpole (1721-1742), eschewed the title during his lifetime.  It is also often said that the first official use of the title came in the Treaty of Berlin (1878), which was signed on behalf of the UK by Benjamin Disraeli.  However, formal recognition of the role largely had to wait until the 20th century.  Prof. George Jones of the LSE traces the development of the office:
• The list of ministers printed in Hansard began using the title ‘Prime Minister’ in 1885...
• In the minutes for the first meeting of the Committee of Imperial Defence in 1902, the ‘Prime Minister’ was referred to as being present...
• The Imperial Calendar (the predecessor to the Civil Service Yearbook) referred to the ‘Prime Minister’ for the first time in its 1904 edition...
• The Prime Minister was given a position in the order of precedence in 1905...
• The first mention of the Prime Minister in statute came with the Chequers Estate Act 1917...
• Reference to an explicitly labelled ‘Prime Minister’s Office’ in the Civil Service Yearbook did not take place until the appearance of the 1977 edition....

The Prime Ministership is what Prime Ministers make of it

There is no formal statement of the powers of the Prime Minister comparable to (say) the list of the powers of the President of France in Title II of the French Constitution - though Lord (Peter) Hennessy pointed to an unofficial list drawn up by the civil service in 1947, together with a contemporary list that he had composed himself (both documents are reproduced at the end of this post).  The Prime Minister also lacks a fully-fledged department of his own like the Department of the Taoiseach in Ireland and the German Chancellery.  This is one consequence of the historical development of the role, since the Prime Minister, as First Lord of the Treasury, was responsible for the Treasury until roughly the mid-19th century.

Prof. Jones also makes the point that the PM rarely features in legislation:
As of 2010, there were 92 pieces of primary legislation and 422 of secondary legislation referring specifically to the ‘Prime Minister’....  By contrast, the respective totals for the Secretary of State for Health were 662 and 7,205; and for the Business Secretary 577 and 2,221.
As Tony Blair said in a written answer to a parliamentary question in October 2001:
[The Prime Minister's functions], including the exercise of power under the Royal prerogative, have evolved over many years, drawing on convention and usage, and it is not possible precisely to define them. The Government has no plans to introduce legislation in this area.
This might be felt to be a serious weakness of the British system.  If the PM's powers are not clearly defined, there is scope for uncertainty about what he can and cannot do - and, more importantly, he is able to push the boundaries of his authority.  Criticisms of this sort were reflected in some of the evidence taken by the committee.  Alex Salmond drew an unfavourable comparison with the clarity of his own constitutional position under the Scotland Act.  The Greens found it "chilling" that a Prime Minister could potentially use his prerogative powers to deal with civil emergencies outside the framework of normal legislation.

Such criticisms, however, appear to be misconceived.  In most countries, the role played by the head of government is as much dependent on circumstances as it is on legislation.  Here is Dr Eoin O'Malley of Dublin City University:
In general the role and powers of the prime minister are guided by the circumstances, and the ability to use prerogative powers can vary even though the constitution doesn’t. There is remarkably little variation across countries in the constitutional prerogatives granted prime ministers... but much greater variation in the effective power over policy-making over time and across countries.

While it might be legally pretty to have some codification of the prime ministers’ powers, the reality is that prime ministers are constrained not so much by the limited powers granted them... but by political factors.
Another overseas expert, Prof. Ludger Helms of the University of Innsbruck, echoed this judgement:
Comparative inquiries... suggest that in most countries the executive territory is the arena with the largest number, and the greatest political relevance, of informal rules which are characteristically not codified anywhere. In countries known for their particularly detailed set of written rules concerning the head of government’s role and powers, such as Germany, the tension between formal legal stipulations and the living constitution has been particularly marked.
Prof. Helms also observed that "there is sufficient clarity as to the [British] Prime Minister’s role and powers – at least among those who have a more than superficial or casual interest in the subject".

Dr Mark Bennister of Canterbury Christ Church University had this to say:
The premiership is flexible and depends on agency (the incumbent Prime Minister) and structural (institutional constraints) factors. Power varies from one Prime Minister to another and fluctuates within a Prime Minister’s period of office. The key to power and predominance lies in the discharge of informal resources, and the management of dependency relationships alongside formal structural resources. Personal power resources include: reputation, skill and ability; association with actual or anticipated political success; public popularity; and high standing in his or her party. Institutional power resources include: being the legal head of the government; agenda setting through leadership of the cabinet and cabinet committee system and Whitehall; strengthening Downing Street and the Cabinet Office (the centre); agenda setting through news media management."

The Prime Minister is not a President

It has become a commonplace of political journalism to describe British Prime Ministers as "presidential".  This criticism - and it usually is a criticism - long predates Tony Blair's premiership, and was levelled in the past at Harold Wilson, Edward Heath and Margaret Thatcher.

As the former Cabinet Secretary Lord Wilson has said, "Prime ministers are only as powerful as their colleagues allow them to be".  In his evidence to the committee, Dr Richard Heffernan of the Open University noted that Gordon Brown's long-running power struggle with Tony Blair, which Blair admitted in his memoirs had led to his political agenda being impeded, could never have arisen between an American president and his Treasury Secretary.  Dr Nicholas Allen of Royal Holloway likewise thought that "[t]here is little evidence that the prime minister is too powerful", while from his Austrian vantage point Prof. Helms agreed that the role of Prime Minister was sufficiently checked and balanced:
I think there are sufficient checks and balances, even though such a positive and unqualified assessment is probably tenable only for a country like Britain. A similar construction of the office of prime minister would have to be considered highly problematic in countries with a less mature political culture than the British.
A better way of viewing the PM's role, Dr Allen suggested, was as the site of a tension between collegiality and individual power:
The prime minister operates in a system built on two contradictory norms: (i) the norm of collegiality or collective decision making; and (ii) the norm of prime ministerial authority.... Prime ministerial authority is sometimes grumbled about, but it is an accepted part of the political system. Needless to say, there is inevitable tension between the two norms. Indeed, Britain’s core executive stands over a fault line.
Prof. Jones also highlighted the tendency for the system to "zigzag" between presidential and collegial leaders.  The alternation between Churchill and Atlee is one example of this, as is the more recent 31-year sequence of Callaghan, Thatcher, Major, Blair and Brown.

The Prime Minister should not be directly elected

This was a message that came through quite clearly.  It is occasionally suggested that the British Prime Minister should be directly elected, even if in other respects our parliamentary system were retained.  This proposal is associated with the view that the PM is too powerful, but, ironically, the idea generally tends to surface in countries with historically weak premierships, such as the Netherlands, Italy and Japan.

The only country to experiment with an elected PM has been Israel, which introduced such a system in 1996.  This experiment, which Prof. Paul Webb of the University of Sussex describes in some detail, was a fairly clear failure and was ended in 2001. 

Appendix - The powers of the Prime Minister

1.  The 1947 civil servants' list  (as summarised by Lord Hennessy)

1: Managing the relationship between the Monarch and the government as a whole.
2: Hiring and firing ministers.
3. Chairing the Cabinet and its most important committees.
4. Arranging other ‘Cabinet business’, i.e., the chairmanships of other committees, their memberships
and agendas.
5. Overall control of the Civil Service as First Lord of the Treasury.
6. The allocation of functions between departments; their creation and abolition.
7. Relationships with other heads of government.
8. An especially close involvement in foreign policy and defence matters.
9. Top Civil Service appointments.
10. Top appointments to many institutions of ‘a national character’.
11. ‘Certain scholastical and ecclesiastical appointments.’
12. The handling of ‘precedent and procedure’.

2.  Lord Hennessy's 2011 list

Constitutional and procedural

1: Managing the relationship between the Government and the Monarch and the Heir to the Throne.
2: Managing the relationship between the Government and the Opposition on a Privy Counsellor basis.
3: Managing the relationships between UK Central Government and devolved administrations in Scotland, Wales and Northern Ireland.
4: Establishing order of precedence in Cabinet.
5: Interpretation and content of procedural and conduct guidelines for ministers as outlined in the Ministerial Code and the draft Cabinet Manual.
6: Oversight, with the Cabinet Secretary advising, of the Civil Service Code as enshrined in the Constitutional Reform and Governance Act 2010.
7: Decisions, with the Justice Secretary, on whether and when to use the ministerial override on disclosure under the Freedom of Information Act 2000.
8: Requesting the Sovereign to grant a dissolution of Parliament (unless and until Parliament passes the Fixed-Term Parliament Bill.)
9: Authorising the Cabinet Secretary to facilitate negotiations between the political parties in the event of a ‘hung’ General Election result.
10: Managing intra-Coalition relationships with the Deputy Prime Minister.

(Made in the name of the Sovereign but chosen by the Prime Minister)

1: Appointment and dismissal of ministers (final approval of their parliamentary private secretaries and special advisers) in consultation with the Deputy Prime Minister for Liberal Democrat appointments and the appointment of the Law Officers.
2: Top appointments to the headships of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters.
3: Top appointments to the Home Civil Service; and, in collaboration with the Foreign Secretary to the Diplomatic Service; and, with the Defence Secretary, to the Armed Forces.
4: Top ecclesiastical appointments (though since Gordon Brown’s premierships, the Prime Minister has conveyed the preference of the Church of England’s selectors to the Monarch without interference).
5: Residual academic appointments: the Mastership of Trinity College, Cambridge; the Principalship of King’s College, London; a small number of regius professorships in Oxford and Cambridge (the First Minister in Edinburgh is responsible for the Scottish regius chairs). Since the Blair premiership the No 10 practice has been to convey the wishes of the institutions to the Queen without interference.
6: Top public sector appointments and regulators (with some informal parliamentary oversight).
7: Appointments to committees of inquiry and royal commissions.
8: The award of party political honours.
9: Party political appointments to the House of Lords (independent crossbench peers are selected by the
House of Lords Appointments Commission and the Prime Minister conveys the recommendations to the Monarch without interference).

Conduct of cabinet and parliamentary business

1: Calling meetings of Cabinet and its committees. Fixing their agenda and, in the case of committees, their membership in consultation with the Deputy Prime Minister.
2: The calling of ‘Political Cabinets’ with no officials present.
3: Deciding issues where Cabinet or Cabinet committees are unable to agree.
4: Deciding, with the Deputy Prime Minister, when the Cabinet is allowed an ‘opt out’ on collective responsibility and subsequent whipping arrangements in Parliament.
5: Granting ministers permission to miss Cabinet meetings or leave the country.
6: Ultimate responsibility (with the Deputy Prime Minister and the leaders of the House of Commons and the House of Lords) for the government’s legislative programme and the use of government time in the chambers of both Houses.
7: Answering questions for 30 minutes on Wednesdays when the House of Commons is sitting on nearly the whole range of government activity.
8: Appearing twice a year to give evidence before the House of Commons Liaision Committee.

Policy, strategy and communications

1: Keeper, with the Deputy Prime Minister, of the Coalition’s overall Political Strategy.
2: Oversight of No 10 Communications Strategy and work of the Government Communication Network.
3: Pursuit and promulgation of special overarching policies particularly associated with the Prime Minister eg. the ‘Big Society.’

Organisational and efficiency questions

1: Organisation and Staffing of No 10 and the Cabinet Office (including the Prime Minister’s relationship with the Deputy Prime Minister and the two senior Cabinet Office ministers dealing with policy strategy and public service reform).
2: Size of Cabinet, workload on ministers and the Civil Service.
3: The creation and merger of government departments and executive agencies.

Budget and market-sensitive decisions

1: Determining with the Chancellor of the Exchequer, the Deputy Prime Minister and the Chief Secretary of the Treasury the detailed contents of the Budget. By tradition, the full Cabinet is only apprised of the full contents the morning before the Budget statement is delivered.
2: Interest rates are now set by the Monetary Policy Committee of the Bank of England. The Prime Minister and the Chancellor of the Exchequer possess an override under the Bank of England Act 1998 if the ‘public interest’ requires and ‘by extreme economic circumstances’ but this has never been used.

National security

1: Chairing the weekly meetings of the National Security Council (which also serves, when needed, as a ‘War Cabinet’).
2: Oversight of the production and implementation of the National Security Strategy.
3: Oversight of counter-terrorist policies and arrangements.
4: Overall efficiency of the secret agencies, their operations, budgets and oversight and the intelligence assessments process in the Cabinet Office.
5: Preparation of the ‘War Book’.
6: Contingency planning to cope with threats to essential services and national health from whatever sources.
7: With the Foreign and Defence Secretaries the use of the royal prerogative to deploy Her Majesty’s Forces in action (with Parliament, by convention, being consulted if time allows).
8: With the Foreign Secretary the use of the royal prerogative to ratify or annul treaties, to recognise or derecognise countries (though in certain circumstances, the House of Commons can block treaty ratification under the Constitutional Reform and Governance Act 2010).

Special personal responsibilities

1: Representing the UK at a range of international meetings and ‘summits.’
2: The maintenance of the special intelligence and nuclear relationships with the US President under the terms of the 1946 Communications Agreement, the 1958 Agreement for Co-operation on the Uses of Atomic Energy for Mutual Defence Purposes and the 1963 Polaris Sales Agreement.
3: The decision to shoot down a hijacked aircraft or an unidentified civil aircraft which responds neither to radio contact nor the signals of RAF interceptor jets, before it reaches a conurbation or a key target on UK territory (plus the appointment of two or three deputies for this purpose).
4: Authorisation of the use of UK nuclear weapons including the preparation of four ‘last resort’ letters for installation in the inner safes of each Royal Navy Trident submarine and the appointment, on a personal basis rather than the Cabinet’s order of precedence, of the ‘nuclear deputies’ lest the Prime Minister should be out of reach or indisposed during an emergency.