Is it time to restrain the Executive again?

800 years after the first attempt was made to place constitutional restraints on the monarch and make them subject to the law, is it time to consider placing constraints on the Executive once again? Take a moment to reflect on the fact that the prime minster has more absolute power than was once used and abused by those troublesome monarchs “bad king” John and Charles I.

The prime minister is elected and wields power legitimately but that does not weaken the argument against so much power being concentrated in one figure. Having, by an “accident of history”, inherited the powers formerly attached to the monarch, the authority of the Executive has never been properly set out in statute by Parliament. Nor is there any formal requirement for parliamentary consent to the exercise of the Royal Prerogative.

There have been several reviews but they always conclude with the Executive retaining its massive power. Consequently, the prime minister is able to carry out many activities without restraint and without proper democratic oversight.

The prime minister can deploy the armed forces, declare war and peace, authorise the use of nuclear weapons, make and ratify treaties, issue and revoke passports, grant honours and peerages, organise the civil service, and appoint bishops, ambassadors, senior judges and quango members, as well as the cabinet, ministers and the whips.

The leader of a party with a majority in the House of Commons absolutely dominates parliament as well as the making the decisions of the ruling party.

This is yet another typical British constitutional quirk. It is one of the many that have just seemed to work for centuries as we successfully bumble our way through the constitutional tangles with surprising grace. It has long been thought of as basically wrong in theory but deemed acceptable in practice because the prime minister has always used the power of the office, including the Royal Prerogative, with restraint. This no longer applies.

Margaret Thatcher centralised power within her office in order to see off opposition, but she also had the intention to use centralised controls to devolve power from the state to the people. This was expressly not the intention of the revolutionary New Labour project which really exposed the extent to which the powers of the Executive are in need of pruning.

Tony Blair, backed by the centralist former communist visionaries of the party, saw himself as a presidential figure and this was reflected in his leadership style and the way he organised his government.

The Blair government considered itself to be “the people’s government” and was determined to trample over any obstacle, and take any powers necessary, to do exactly what it wanted. The civil service, Parliament, the judiciary, even the Cabinet – all with powers in tension with each other specifically because the to and fro between them ensures laws are reasonable and executed fairly, that policies are sound and tested by debate and discussion, and that the Executive and their government cannot just do whatever it likes without restraint – were to be bypassed, infiltrated or neutered.

Blair strengthened his own position by expanding the power and scope of the Prime Minister’s office. Neutral civil servants were replaced with political appointees. Snooping eyes and ears were placed into departmental processes by powerful new agencies to steadily gain control over every area of government. Cabinet Ministers had little independence or power; strategists took decisions for them and the spin doctors told them what to say and what they though

Informal advisers were given powerful roles enforcing government discipline. New agencies were crested to centralise policy and delivery. The Number 10 Policy Unit became a powerful Executive team, and Blair made decisions from a sofa in Downing Street surrounded by his “inner cabinet” of loyalists and unelected advisers, spin doctors and strategists.

The civil service is supposed to offer protection against executive autocracy and to prevent state power being used corruptly or for party gain. It also had an important role in scrutinising policy ideas and drafting Bills, but it has been steadily weakened. When Thatcher found them to be unhelpful, she would encourage ministers to press them, and there were instances during her premiership when neutrality was violated; but Tony Blair took it to a whole new level.

He introduced political commissars into government – like some soviet megalomaniac – with unprecedented powers to bully, cajole and “whip” the civil service, thereby violating their neutrality completely. Politically neutral civil servants were displaced from administrative roles because he saw them as obstructive constraints on the power of his party.

In places of government formerly considered to demand impartiality, apparatchiks dominated.  The number of “special advisers” – the political strategists who are paid with public money but serve at the whim of ministers – increased fourfold. Party advisers intervened in the promotion and appointments of civil servants and Alistair Campbell was unleashed to revolutionise government communication.

Centralising power in Downing Street, manipulating the civil service, churning out organised lies and propaganda and creating a battalion of loyal quangocrats made it easy for Labour to push through major constitutional reforms with little debate or pause for reflection, introduce reams of legislation destroying ancient liberties, massively expand the scope and power of the state, increase the size of the public sector and the welfare state to unaffordable proportions, transfer powers wholesale to Brussels and to wage war with flimsy justification. The mother of all parliaments has not been so weak for centuries.

There is an imbalance of power in our political system.  The rise of the political careerists means that increasingly MPs have little outside income and so their income and their careers depend on keeping the prime minister happy in order to climb the ladder and obtain a ministerial post.

Once they have gained promotion they know that they owe their salaries, pensions and careers to the patronage of the prime minister. They can be sacked at will and therefore brought to heel fairly reliably. A ministerial post has become an easy way to ensure conformity in troublesome characters, further enfeebling Parliament and empowering the Executive. The imbalance of power is aggravated by the fact that there are an absurd amount of ministers.

Worryingly, the clamour for full time MPs grows ever louder. Any future move to fully professionalise politics by making MPs full time will make the issue of tamed, obsequious MPs far worse.

Even the Cabinet has become a weekly chat about presentation and media management. The Executive and his team of unelected advisers take many of the decisions out of their hands, informing the line to take once the decisions have been made.

The strategists, special advisers and spin doctors of Downing Street have little time for Parliament with its traditional role of scrutinising legislation from many different perspectives, allowing for the expression of many different points of view, and then holding the Executive to account. Downing Street now forcefully pushes through so much legislation through parliament that MPs don’t have the proper time to analyse and debate it.

Because diplomatic appointments, the making and ratifying of treaties and national defence are controlled from Downing Street through the Crown Prerogative powers, our legislature is especially feeble in foreign affairs and in matters related to the European Union.

Unlike in other EU states, when an EU treaty needs to be implemented no parliamentary ratification is required nor a referendum. The treaty can be implemented in full without the consent of Parliament and without even passing through the House of Commons. The foreign secretary can simply sign it off, ceremonially on behalf of the sovereign, but actually under the orders of the prime minister.

It is in this fashion that the Maastrict Treaty and the Lisbon Treaty were forced through by the Executive. Vast chunks of national sovereignty transferred to a supranational foreign body; the last vestiges of our independence signed away without the thorough and robust public debate, scrutiny and consultation.

Before he took office David Cameron adopted the transference of Royal Prerogative powers to Parliament as official Conservative policy, but this was swiftly dropped. I fear that the only way to restrain the Executive in the future will be, once again, under duress; at the insistence of a bold Parliament.

Effective restrains on the Executive – which cannot simply be swept aside by the arbitrary exercise of power by a future PM – would require a codified constitution, something I have come to believe is necessary to restore liberty, restrain the state and reform the UK (more on this in future posts).  There are several measures that would shift power back from the Executive to the legislature.

The powers to appoint senior judges, diplomats, ambassadors, public body officials, bishops and to award peerages and decorations should be transferred to Parliament.  These are decisions that should be made in open hearings, not behind the closed door of number 10 Downing Street.

The House of Commons should be given the power of treaty making. This means that not only would they be properly discussed in the open, with every new Parliament they would be discussed, debated, examined and re-examined to ensure they are endorsed and renewed, or allowed to lapse, in a proper democratic process.

Furthermore, Parliament should always be consulted for a decision on whether or not Britain goes to war. Foreign policy would then not be driven so much by the desire of one figure but expressed by our representatives in Parliament. With these new powers over foreign policy there would be more political balance, better checks on the desires of the PM, and more heed would need to be paid to public opinion.

No political party appointees should be allowed any power over civil servants. No more bullying and cajoling by commissars; only elected representatives should be able to wield any form of power over the civil service.

Since 2010, a cut in the number of MPs has been on the cards, but any cut in MP numbers should be matched by a drastic cut in the number of ministers to prevent the relationship between the Executive and Parliament becoming even more skewed.

Ideally, a major reform in the system would be combined with radical devolution; true localism. Meaning local authorities and cities gain real power through devolved policing, social security and more tax raising powers.

This would facilitate a dramatic cut in the number of MPs and ministerial posts. Empowering local authorities would allow for shorter parliamentary sessions. Having fewer responsibilities and less need for to act as social workers to their constituents, would free MPs up to do more outside work. Thus they would be less reliant on one source of income, there would be less political careerists and we would potentially have more independent minds in Parliament.

I would argue that fresh restraints on the prime minister are an essential part of a wider package of constitutional reforms needed to restore liberty and reform our democracy.

There being so much unrestrained power concentrated in one figure, it was inevitable that there would be abuse and the use of state power to serve private and party interests. Let us not exist in false security because absolute monarchs and dictators are only part of our distant history. The saying is as relevant as ever; absolute power corrupts absolutely.