OPTIONS PAPER: EXECUTIVE REFORM

The danger of the concentration of power in the executive and in the person of the prime minister in Britain’s parliamentary democracy has been exposed in recent years. But it is an issue that predates the government of Boris Johnson.  

During the Johnson years, Britain’s unwritten constitution – heavily reliant on norms and conventions – has been exploited to the limit. The self-restraint required of governments to ensure the system is not abused is absent. This reveals the limits of historian Peter Hennessy’s ‘good chaps’ theory of government.

The Johnson government – and Boris Johnson in particular – regularly sought to limit scrutiny, evade accountability and too often acted without the probity and good faith our democracy rests on. Extremist tendencies are indulged and the government views challenge as an affront, even though this is an essential part of our democratic process. It engages in lying – an offence against democracy itself. Meanwhile, citizens’ rights – whether in the realm of voting, judicial review or protest – have been eroded. The public, particularly young people, are left with the impression that we have a corrupted political state. Their disillusion and disengagement from the political system is a threat to our democracy.

But the dominance of the executive and the prime minister within the British political system is not new nor confined to any one political party. 

Over a number of decades – from the administrations of Thatcher, Blair to Cameron and beyond – an increasingly presidential-style of governance by the prime minister, surrounded by a small but influential group of special advisors, emerged. The influence of cabinet and crown has been diminished, ceding power to the executive and prime minister. Citizens increasingly see themselves as voting, not for a constituency MP, but for the country’s leader in general elections.

This has led some to argue that the UK has ‘executive sovereignty’ rather than parliamentary sovereignty – and that there is a lack of legitimacy around the prime minister and ministers because they are not directly elected and ‘steal’ their legitimacy from being members of the legislature. For proponents of this framing, we first need an honest recognition of ‘executive sovereignty’ within the British parliamentary system, before we can take steps to deal with its consequences.

Unlike other explicitly presidential systems – such as the French or US – the UK’s presidential-style creep has developed without the corresponding checks and balances which such a system must have in place. Because the executive is derived from the legislature, there is arguably no real separation of powers in the British system that can hold executive power to account. A government with a majority in the House of Commons is constrained by very little. 

At times of crisis, as we have seen during the pandemic, executive overreach in awarding contracts to contacts, promoting friends to positions of power and introducing legislation to curtail human rights, is almost without limit.

The result is an all-powerful executive, which can choose to act without self-restraint and insulate itself from scrutiny – including around poor legislation and the breaking of constitutional values and norms – and use every power to the limit and beyond.

It has been argued that the British system of executive dominance does have certain benefits, both in terms of transparency and accountability. 

Indeed, for some, the very role of the executive is to control the legislature. The executive sets the parliamentary timetable. The executive decides on and passes laws. The supposed advantage of this system is that it has resulted in ‘strong’ governments ‘that can get things done’ – which the public is said to generally favour. 

It is clear that ‘politics’ is distinct from the irresponsible exercise of executive power. Disagreeing with a government’s political agenda does not make the case for reforming the executive and prime minister’s powers. But, while our system of executive dominance may have certain advantages, the dangers of how this concentrated power can be used are becoming increasingly clear. Democracy is historically not the normal state of humanity and constitutions are fragile.

This options paper sets out areas for consideration in which incremental changes could be introduced to increase executive accountability; they are not mutually exclusive. These could act as technocratic and structural solutions to the increasingly presidential-style political culture that has developed around the executive in the UK.

Option 1: Place the roles of the prime minister, cabinet and MPs on a statutory footing

In order for the public, media and those in politics to understand the role of the prime minister, the cabinet and MPs – including their limits – it is necessary to set out what the execution, powers and responsibilities of these positions involve. They currently have no legal basis.

This clarity could be achieved through introducing legislation setting out descriptions of these roles – what responsibilities and duties they entail, specific democratic functions, and what they do not allow for. 

For example, such legislation could include the requirement that the prime minister must seek the approval of Parliament before making changes to codes of conduct or specify at which parliamentary committees their attendance is compulsory. 

It could also include a job description for MPs – so that, although the role of their work in constituencies is clear, scrutinising and holding the government to account is explicitly stated as one of their primary responsibilities. (Peers sitting in the House of Lords, who do not represent constituencies, see their primary role as concentrating on their parliamentary duties – although attendance is also clearly an issue in this respect).

A legislative framework for the prime minister and cabinet ministers would be similar to existing frameworks for local government.

Option 2: Place the Ministerial Code on a statutory footing

The Ministerial Code sets out the standards of conduct expected of ministers and how they discharge their duties. The prime minister is the ultimate arbiter of the Code and decides on what action is to be taken in cases of breaches. It currently has no legal basis. 

There has long been an expectation that breaching the Code would lead to dismissal, with the Code stating that ministers “will be expected to offer their resignation to the Prime Minister” if they “knowingly mislead Parliament”. However, the wording of the Ministerial Code was amended by Boris Johnson in May 2022 and now also states that an “appropriate sanction” for a breach could include a “public apology, remedial action or removal of ministerial salary for a period” – instead of dismissal. 

To elevate the gravity of the Ministerial Code, beyond mere convention, it could be placed on a statutory footing – clearly setting out what is expected, potential sanctions for infringements, and procedure for when and how the Code can be amended. 

So as not to encroach unreasonably on the prime minister’s powers, such a statute could set out the ‘outer limits’ of when the Code should be enforced and the consequences of enforcing it or choosing not to enforce it. The decision to dismiss or retain ministers would remain with the prime minister, while their accountability over such decisions would be strengthened.

Option 3: Place Royal Prerogative Powers on a statutory footing

Royal prerogative powers, historically exercised by the crown, currently have no legal basis.

Given that, in recent years, their exercise has increasingly been taken over by the executive, legislation could set out what powers exist, the circumstances in which they can be used and cannot be used, and by whom.

Option 4: Increase the power of Parliament

The timetable for Parliament – including which debates are held and when, and which legislation is introduced and the process for this to be considered – is currently controlled by the executive. One way to increase Parliament’s power could be to transfer the power to Parliament to determine its own timetable. This would not inhibit the progress of legislation if the government holds a majority.

This could be set out in the legislative framework as discussed in Option 1 – whereby it could be made clear in statute that the prime minister and the cabinet cannot exercise control over the parliamentary timetable. 

Matters of procedure in Parliament could be decided after recommendations by a committee of the whole house. A Procedure Committee – which considers the practice and procedure of the House of Commons in the conduct of its public business – currently exists and its remit could be looked at in this respect.

Another way to increase executive accountability to Parliament could be the consideration of reforms to how the prime minister is chosen.

In Scotland’s devolved system, for example, the leader of the largest party in the Scottish Parliament does not automatically become the first minister. The first minister is first formally ‘nominated’ as the first minister by the Scottish Parliament, with their name then put forward to be ‘appointed’ by the monarch. The first minister appoints cabinet ministers with the agreement of the Scottish Parliament and the approval of the monarch.

A similar change could be introduced in Westminster, whereby the prime minister – selected by the largest party – is voted on by Parliament. This could also open up the possibility that this individual does not have to be the same person as the leader of the largest party. 

The fact that Parliament would have to vote to approve the prime minister’s election would be key and act as a counterweight to the presidential-style of governance which has emerged in the British political system in recent years. 

Whether secretaries of state and ministerial positions should require approval through a vote in Parliament could also be considered.

Option 5: Increase Parliamentary scrutiny of legislation

In order to address a number of concerns about how active a role Parliament is currently playing in the legislative process, consideration should be given as to how to increase its involvement.

There are concerns that Parliament is too often shut out of the legislative decision-making process, enabling the executive to rush through legislation (as has been seen in recent years in areas such as Brexit and the Coronavirus pandemic).

Indeed, during the pandemic, powers were handed to the executive in a time of emergency, under the 2020 Coronavirus Act, which gave senior ministers the power to make any provision that could ordinarily be made through an Act of Parliament or the exercise of royal prerogative – including the power to amend or suspend legislation. Although it was meant to be used as a last resort, and some of its temporary provisions have now expired, others remain in place and some have been extended.

There is also the frequent use of secondary legislation such as statutory instruments – which, while useful and legitimate, are increasingly being used in a wider remit of areas (for example, in the Northern Ireland Protocol) – and the growing use of skeleton bills and ‘Henry VIII clauses’.

‘Henry VIII clauses’ are clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation, which is subject to varying degrees of parliamentary scrutiny. 

Meanwhile, several House of Lords committees have expressed concern about the increasing use of skeleton bills (also known as ‘framework bills’) that set out the principles for a policy but leave the details to be filled in later by ministers through delegated powers. Because these powers are subject to less rigorous scrutiny than bills, there have been calls for the use of such bills to be restricted, alongside a broader reset in the balance of power between Parliament and the executive.

Consideration should be given as to how the use of such legislation, bills and powers with increasing regularity by the executive can be curtailed so that Parliament is not sidelined in the legislative process except in the most exceptional of cases.

Consideration should also be given as to how Parliament’s power with regards to pre-legislative scrutiny of bills can be strengthened so that laws are well-drafted and do not contravene existing legislation or obligations the UK is party to.

The House of Commons can currently appoint General Committees to consider proposed legislation in detail. But, as these reflect the political make-up of the House of Commons, the government always has a majority on them. Consideration could be given as to how the work of such committees could be strengthened – something considered further in Option 7.

Option 6: Restore the power of cabinet

In recent years, there has been a shift away from cabinet collective responsibility to a ‘sofa government’ approach – reducing the autonomy of individual ministers and concentrating power in the office of the prime minister and advisors. 

As a result, cabinet has become less influential and there are concerns about the extent to which secretaries of state are appointed for their loyalty to the prime minister rather than their knowledge, skill or competence in the role – and then feeling a personal duty to the prime minister rather than a professional one.

One way to counter this is to consider how to give more power back to cabinet, so that it has more of an active role in the work of the executive.

For example – as briefly mentioned in Option 4 – Parliament could be required to approve cabinet appointments made by the prime minister through a vote. This would provide greater impetus for individuals to be appointed by the prime minister having demonstrated their experience and competency – and would help to counter concerns around loyalty and cronyism. 

Another area which could be given consideration is the lack of expertise in cabinet – which can result in ministers placating rather than challenging their prime minister – and whether qualifications and training should be required for cabinet ministers. This could involve, as above, the need to prove capabilities based on past experience; or a handover period for any new incoming minister, whereby the previous minister continues to sit alongside their successor, and the new minister is able to receive some training in their area. 

Option 7: Consider how to strengthen the committee system

The select committee system is one area primed for holding the executive to account – which can be seen in the work of the Liaison Committee and its regular sessions with the prime minister. Committees are where MPs and ministers listen carefully to evidence in order to critique policy and delivery. The cross-party nature of committees shows that considered and patient discourse is an effective part of the democratic process.

Consideration should be given as to how the committee system can be strengthened and the work of committees afforded greater impact.

The immense scale of government also means that its work is not always being understood or managed – making the case for why more responsibilities should be devolved.

The next step in the development of select committees would be for each secretary of state to present an annual plan with a budget to their respective select committee. Such a process is normal in local government, business and the charity sector. 

If the secretary of state wishes to deviate from this budget and its aims, they would be required to appear before the committee in order to justify any changes and properly account for why they are necessary and how they would be implemented. 

Finally, the secretary of state would be required to attend the committee to report on how their department implemented the budget and its aims. 

The work of setting budgets in line with policy aims is currently in the control of departments themselves. This proposal would increase the accountability and transparency of ministers and aim to spread and rebalance power – involving more parliamentarians in the business of government without this being overbearing. It would also inhibit ministers from knee-jerk policies in response to media outcry.

Consideration could also be given to how reports produced by committees could achieve greater impact. Even though departments usually respond to them, this is not mandatory and recommendations often go unheeded. 

There is also the issue of how committees are selected and their make-up.

Currently, committee membership reflects the party balance in the House of Commons, meaning that a majority of each committee will consist of MPs from the governing party. Chairs of most of the committees are elected by a secret ballot of all MPs, whereas committee members are selected within each party. Consideration could be given as to whether the vote on committee chairs in the House of Commons could be a ‘free vote’.

In order to increase executive scrutiny and accountability, some argue that all committee chairs should consist of MPs from opposition parties so that the impact and scope of a committee’s work is not limited by partisan leanings.

Committee members could be provided with professional training so that their questioning can be as forensic as possible.

Select committees should be given increased resources including staffing so that they are adequately advised and supported.

Consideration could also be given as to whether the role of the committee system within Britain’s democracy should be put on a statutory footing – as per Options 1-3 – so that its role, processes and powers are clear. Committees currently have no legal basis and executive encroachment in this area has been a problem in recent years. 

For example, the publication of an influential report into Russian influence in the UK by the Intelligence and Security Committee was delayed by Boris Johnson until after the 2019 general election – including attempts to install a chair considered favourable to Johnson. Similarly, Jacob Rees-Mogg, then Leader of the House, stopped the work of the Future Relationship with the European Union Committee in 2021. This is despite Parliament being responsible for committee procedure.

Option 8: Recognise the need for an Instrument of Government setting out the UK’s constitutional principles

As the UK does not have a codified, written constitution, its constitutional principles are found in various statutes, conventions and prerogatives which do not ‘sit above’ ordinary politics and can be changed by the executive, using its majority in the House of Commons to do so. Thus, in the UK’s democracy, there is currently no difference between ordinary law and constitutional law. 

While the advantage of not having a written constitution is the system’s flexibility – laws can be amended to meet changing times fairly easily, compared to systems such as the US – consideration should be given as to how the UK’s constitutional settlement and principles can be afforded greater recognition with the political system to ensure that the values they embody can be safeguarded.

One option could be a statute expressing the UK’s structural constitutional principles in broad but definitive terms – for example, the UK’s commitment to the rule of law and an independent judiciary; to democratic not majoritarian rule; to civil liberties and human rights.

In the French system, for instance, the Council of State considers issues involving public administration, including proposed legislation, and is the final arbiter of cases relating to executive power. Consideration could be given to such a court or committee for the UK, comprising qualified individuals outside of politics, sitting to ensure that legislation and executive power is being proposed and exercised in a way that is compatible with the UK’s constitutional principles.

Another issue to consider is how legislation with constitutional importance is passed and amended. The UK Parliament currently uses a simple majority vote to pass legislation. Consideration could be given as to whether a ‘super majority’ – requiring two-thirds of the House of Commons to vote in favour – should be required for legislation involving constitutional matters. 

This option is not suggesting that the UK adopt a written constitution by stealth – merely that the existing system would benefit from having its constitutional principles clearly set out. The idea is not new, it was first enacted by Oliver Cromwell when he set up the Protectorate in order to establish the balances of power with Parliament.

In conclusion, a general election is on the horizon and the need for constitutional reform is more urgent than ever; it is worrying that it is not being discussed by any of the political parties. The Commission on Political Power contends that the options set out in this paper could incrementally introduce changes that would strengthen and safeguard our parliamentary democracy.

The Commission is aiming to stimulate discussion and fresh ideas about how to increase executive accountability. We need to make sure that prime ministers, ministers and governments are held accountable and progress is urgently needed.

One way to promote the process of reform would be to set up a Royal Commission which would sit independently of the government and investigate how greater executive accountability could be introduced into the UK’s political system, calling expert witnesses, hearing evidence and using citizens’ assemblies to consult and engage people in the difficult issues of structural reform.

Its scope would be wide, so as to consider many other matters of concern – including professional standards in Westminster; how government business is conducted by ministers; transparency; the adversarial nature of proceedings in the House of Commons and its consequences; and the resources currently allocated to MPs to do their jobs.

2022