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Royal Prerogative

Volume 774: debated on Monday 18 July 2016


Asked by

To ask Her Majesty’s Government whether they plan to clarify the conditions for the exercise of the Royal Prerogative.

My Lords, information about the exercise of the royal prerogative is set out in the Cabinet Manual. There is no need for further clarification, and consequently there are no further plans to do so.

My Lords, I hoped that the Minister would have acknowledged that there are grave uncertainties in the operation of the modern law concerning the royal prerogative, not least as regards going to war and the BBC charter. However, the most pressing is the requirement relating to the triggering of Article 50 to leave the European Union. Some 1,050 barristers have, most unusually, given free advice to the nation that the consent of Parliament is necessary, while other lawyers say that it is a matter of prerogative alone. Can the Minister disentangle these competing views and say whether parliamentary consent is necessary?

The Government’s position is that there is no legal obligation to consult Parliament on triggering Article 50. I understand that, as the noble Baroness rightly alluded to, a court case is beginning to trundle its way through the courts, and obviously that will have to make its way. Beyond what I have said, I am sorry to say there is nothing further for me to add at this point.

My Lords, I have already welcomed the Government’s decision, announced last week, on the need for the consent of Parliament to invoke Article 50 rather than rely on the royal prerogative. Since the Constitution Committee of this House proposed, following evidence from the late Lord Mayhew and from me, that the consent of Parliament was necessary to go to war—now a convention—rather than use of the royal prerogative, should not the same committee be asked to examine how the royal prerogative should be used in the future?

How the royal prerogative might be used in the future is obviously a matter for the committee to consider. However, I am sorry to say to your Lordships that I cannot go further than what I have said so far. Our understanding is that there is no legal obligation to consult Parliament on triggering Article 50, as it affects the position in international and not domestic law.

My Lords, going back to the original Question, does the Minister agree with the right honourable David Cameron, who just over 10 years ago said that “the time had come” to re-examine whether it was right for a British Prime Minister to use ancient powers ceded by the monarch to declare war and sign treaties without formally consulting elected MPs. He went on:

“Giving Parliament a greater role in the exercise of these powers … would be an important and tangible way of making government more accountable”.

Do the Minister and his colleagues agree with their former leader in that respect?

The noble Lord will be aware that the Government considered this matter. I defer to the number of noble Lords in this House who have considerable legal experience in this area. The Government considered this issue. On 18 April this year, my right honourable friend the Defence Secretary published a Written Ministerial Statement looking into this and reflecting that the action that the noble Lord refers to was not required and not necessary.

My Lords, I congratulate the Minister on his new responsibilities for the Brexit negotiations. We have had several debates in this House regarding this matter. At the end of the negotiations we will have an exit package, which the noble Lord, Lord Lisvane, has said may be bad or,

“it may be disastrous, but it will surely require further authorisation whether popular, parliamentary or … both”.—[Official Report, 6/7/16; col. 2066.]

Does the Minister agree with that remark?

First, I thank the noble Lord for his kind remarks. As part of the withdrawal process, amendments to the European Communities Act 1972 will need to be considered. That will depend on the outcome of the UK’s negotiations with the EU, and any amendments would require an Act of Parliament.

My Lords, I join in congratulating my noble friend on his additional responsibilities. Following the noble Lord’s question, the fact that the Government do not legally require the consent of Parliament does not mean that they cannot bind themselves to seek Parliament’s authority before entering into a particular action. That is what the Government have done in relation to entering into armed conflict. I put it to my noble friend that sometimes Ministers are not allowed to say something that we all know is perfectly obvious—that Ministers and the Government must seek the approval of both Houses of Parliament before notifying under Article 50.

I hear what my noble friend says and, given that he was my first boss, I hear it very well. As the Government have said, Parliament will have a role in making sure that we find the best way forward. Beyond that, on Article 50, I will simply stick with what I have already said.

My Lords, the noble Lord must surely be aware that there is great confusion over how this matter will be resolved. At the moment, it is said that Article 50 has to be triggered, but how can that happen in the light of the European Communities Act 1972? Would the royal prerogative in this respect trump a parliamentary Act?

My Lords, I am sorry to say that I am sticking with what I have said. Article 50 is a matter for the royal prerogative, as it affects the position in international law and not in domestic law. That is our understanding.

Is it not inconceivable that the royal prerogative should be used to withdraw statutory rights? Is that not what we had an argument with Charles I about in the 17th century?