Don’t talk to me about “Democracy”!
Not that democracy is perfect anyhow but we, in the west and in the UK do not have it!
So if anyone talks to you about our “great democracy” and “Who are you voting for?” or “What are you voting for?” please, do me a favour, laugh in their face! They’re just ignorant bastards.
HC Deb 21 April 1993 vol 223 cc485-92 485
§Motion made, and Question proposed, That this House do now adjourn.—[Mr. Arbuthnot.]
§Mr. John Garrett (Norwich, South) I wish briefly to explore the scope and limits of the royal prerogative and its present-day usage by the Government, and to put a number of questions to the hapless Minister who has the duty of answering the debate. I want to ask him about the profoundly undemocratic practice that allows a Government to act with royal absolutism.
As I understand it, the royal prerogative denotes what remains of the monarch’s power to legislate without the authority of Parliament. As the monarch acts on the advice of Government, the procedure enables a Government to produce primary legislation without parliamentary consent—legislation which, as was made clear by the GCHQ case, may not be challenged in the courts.
Blackstone’s 18th century “Commentaries on the Laws of England” referred to the prerogative as that special pre-eminence which the King hath, over and above all other persons, and out of the course of the common law, in right of his royal dignity”— an arrangement that Blackstone described as in its nature singular and eccentrical”. In the past 10 years, some 1,400 orders have been made under the prerogative. Ministers usually imply that such orders relate to such quaint and innocuous matters as the grant and amendment of charters, and the appointment of visitors and governors of universities. Many do; but the prerogative is also applied to important international obligations and, in particular, to citizens’ rights.
The prerogative is used for the making of international treaties—which may be why from time to time, when it suits them, Ministers tell us that any Commons vote on the Maastricht treaty can be disregarded by the Government. It is also used for the declaration of war and blockade. The Government used it to commit British military forces in the Gulf war—prompting my right hon. Friend the Member for Chesterfield (Mr. Benn) to observe: this is the first time in the history of this country that British troops have been sent into battle under foreign command, using the royal prerogative of war-making to do so, without the House having had an opportunity to express its view on any motion other than that we adjourn”.—[Official Report, 14 January 1991; Vol. 183, c. 616.] My right hon. Friend contrasted the handling of the matter in the House of Commons with the way in which both Houses of the United States Congress had debated and voted on a resolution on military action.
The Government used prerogative powers to enable the United States military to bomb Libya from bases in England. That was a matter of awesome political importance, in which—once again—the House of Commons had no status. The prerogative is used for the control and organisation of the armed forces. In the matter of civil liberties, under the royal prerogative the Government can refuse or withdraw a passport, and can forbid a citizen to leave the country. There is no legal obligation on the Government to provide a passport, which I should have thought was a fundamental right of any citizen of this country.
Jury vetting guidelines and telephone tapping are authorised by royal prerogative, apparently under an ancient royal right to intercept communications between 486 subjects. The criminal injuries compensation scheme was established by royal prerogative without statutory authority.
Most notoriously in recent times, the royal prerogative was used in 1984 to ban from membership of trades unions the staff of the Government intelligence establishment GCHQ. In a subsequent court case on that subject, the Government argued successfully that not only were their powers not open to judicial review, but that instructions given in exercising them enjoyed the same immunity. This situation derived from the fact that the legal relationship between the Crown and civil or Crown servants is governed by the prerogative, and is unlike any normal contractual relationship between employer and employee. That explains why we in this country have yet to resolve the crucial issue whether the duty of a civil servant is to the national interest or to the Government, and why there is no protection for whistleblowers in the civil service.
In any other country, the civil service would be regulated by a civil service Act that set out in law the rights, duties and constitutional position of civil servants. Here, the civil service is subject to the monarchical whims of some Minister. My first question to the Minister is, why cannot the civil service be governed by a civil service Act, and are the Clerks of this House also governed by the royal prerogative, rather than by legislation passed by the House?
The royal prerogative is used for literally thousands of appointments in the public sector, and it is the fount of Government patronage. In 1965, Lord Reid observed: it is not easy to discover and decide the law relating to the royal prerogative and the consequences of its exercise. He noted that there had been “practically no authority” on the matter since 1688.
The most extensive discussion recently of the royal prerogative was by Professor Colin Munro in a publication in 1987. He wrote: In practice … the supervision of prerogative powers does seem to be attended by greater than average difficulty. The very nature of these powers makes them less readily subject to challenge. He tells us that the Parliamentary Commissioner for Administration, or ombudsman, has no power to examine decisions under the royal prerogative and says: the exercise of prerogatives by the Attorney General may not be reviewed. He also says: The correlation between the matters excluded from the Commissioner’s jurisdiction and the spheres of activity in which governments exercise prerogative powers is striking. We also learn from Munro that the manner of the exercise of prerogative powers lies outside the scope of judicial review, so we are inevitably brought to the conclusion that a British subject may be deported, or refused a passport, or have his or her telephone tapped or mail opened by the state without legislative authority, and that neither Parliament nor the judiciary is entitled to examine the matter.
The Minister will also know that subsidiary powers flow from the royal prerogative. The Crown’s right to have admissible evidence withheld from a court when it claims that the public interest so demands has been known as Crown privilege although nowadays its existence is disputed. Does it exist, I ask the Minister, and what does it cover? Is there still such a concept in British law as Crown privilege which exempts the Crown from justiciable matters?
487 Crown immunity is certainly alive and kicking. The sovereign—and, therefore, the Government—still enjoy a number of immunities derived from the ancient “prerogative of perfection”—that is, “The King can do no wrong.” What it means today is that Government Departments and many public bodies are not bound by a huge range of protective legislation, such as health and safety, food hygiene laws and planning and environmental regulations. I understand that that legislation does not, for example, protect those who work in the parliamentary precincts, let alone the hundreds of thousands of people in other public organisations. Therefore, to be employed in a public building means that one cannot be protected by a wide range of legislation.
Munro concludes: Behind the phrase “royal prerogative” lie hidden some issues of great constitutional importance, which are insufficiently recognised. It seems that the prerogative could be dispensed with almost entirely. The civil service and the military could be governed by Acts of Parliament, as in other countries. Telephone tapping, mail interception, deportation and entitlement to travel should be justiciable. Senior public appointments could be supervised by Select Committee. The Speaker could take over some prerogative powers, such as the dissolution of Parliament and the invitation to the leader of the party with the largest majority to form a Government.
In a recent written answer to my hon. Friend the Member for Nottingham, North (Mr. Allen), the Prime Minister said: It is for individual Ministers to decide on a particular occasion whether and how to report to Parliament on the exercise of prerogative powers.”—[Official Report, 1 March 1993; Vol. 220, c. 19.] It is nothing less than a constitutional outrage that Ministers should decide whether to withhold matters from Parliament. It should be the Speaker’s job to decide how the exercise of prerogative powers should be reported to the House. It should also be up to the Speaker to judge whether a Minister should answer to the House for the use of extra-statutory power.
The royal prerogative is an anachronism—an example of the overweening and authoritarian power of Government over Parliament. In truth, the purpose of our Parliament is to provide a Government and to scrutinise their actions and decisions, but only to the extent that Government will allow. That is not good enough. The royal prerogative is a chilling manifestation of the way in which our democracy is deficient, and it should be mapped by the Select Committee on Procedure as soon as possible, and then largely ended.
I am keen to hear what the Minister has to say about the boundaries of the royal prerogative and the extent to which as, I hope, a democrat he thinks that government by proclamation and diktat could be replaced by a proper legislative process.
THE SECURITY SERVICE
HC Deb 17 January 1989 vol 145 cc180-238
Mr. Benn The amendments touch on the nub of the Bill—what is subversion and what is national security and who should decide what is national security and who 193 should decide what is subversion? Having the Bill means that we have probably had more meaningful discussion on the Security Service than we have had in recent years.
For a long time the general public have been persuaded that it is in their interests that foreign spies and domestic terrorists should be under careful scrutiny. Communists were automatically identified with foreign spies. I imagine that if the Soviet Union had wanted spies in Britain it would not have picked members of the Communist party. However, that was one of the foolish ideas that was current. The whole thing had to be covered by the tightest security and secrecy and judges capitulated whenever they heard the magic word “security”.
The amendment is important because the definition of subversion is a political decision. Who is the enemy is a political question. We do not say that the chief of staff will announce which enemy country he intends to attack. That too is a political question. After all, security is a part of defence. We have an annual defence White Paper in which we are told what resources we have at out disposal and where they are deployed. We have an annual Army order. When I was first in Parliament an Act went through every year. Now it is an annual order. If the House does not endorse that order, the discipline of the armed forces disappears on the day that the old order expires. Why does that procedure not apply to the Security Service?
What is it about the Security Service’s political objectives that makes them different from the defence forces’ political objectives? The answer is that the decision about what is subversive has been taken by MI5, sometimes upon the intervention of Ministers. I say without any disrespect to the Home Secretary that I would be surprised if, like his predecessors, he really knew what was going on. Certainly some of my colleagues who were his predecessors did not know what was going on, because what was going on was an attempt to get the Labour Government out of office. I cannot believe that Lord Jenkins of Hillhead or my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) was in charge of such an operation.
If one pursues the matter more fully, one finds that if pressed the Security Service would say that it is responsible not to the Home Secretary but to the Crown, a concept that I tried to explore on Second Reading. The Crown is a mysterious idea which implies a continuity of activity. The security services have really been protecting the status quo, which is not the same as parliamentary democracy. Parliamentary democracy is supposed to allow one to change the status quo by political action. If one cannot change the status quo by voting, why vote? Immediately we come to the relationship between what is called national security, which is defined as the political and economic status quo, and subversion, which, in the case of parliamentary democracy, is a legal form of trying to change the status quo. The Home Secretary knows that, or his draftsmen have worked on that basis. If one then says that parliamentary democracy is trying to change the status quo by political means, one is caught by the Bill. If one is trying to undermine parliamentary democracy by political actions, one is a subversive. The Home Secretary has put his finger on that. If one interprets parliamentary democracy as meaning that one wants to change anything, one is covered by the Bill because one is trying to undermine parliamentary democracy by political action.
194 The Home Secretary may smile and may give as many assurances as he likes, but I am defining how the Bill will work and that is how the system has worked until now.
Another aspect of the matter, which I have raised before, is that the condition under which the Americans allow us to borrow nuclear weapons is that American intelligence supervises British intelligence. The Americans have to check procedures and, for many purposes, they have to check people who are engaged in activities in which they take an interest. In a strange way, the definition in amendment No. 47 covers the Americans. It refers to the activities of agents of foreign powers that are detrimental to the interests of the United Kingdom and are clandestine or deceptive or involve a threat to any person”. That would deal with James Angleton immediately, but no British Government who wished to retain nuclear weapons could implement such an amendment.
It is not only the theory of the matter that is interesting but the practice. In Field Marshal Lord Carver’s television broadcast after his resignation as chief of the general staff, he said that for most of history Britain’s armed forces were concerned with domestic security. He pointed out—and this point was interesting to me—that there have not been many foreign wars in which the British Army has been engaged. We fought the French and, a couple of times, the Germans, but for most of our history the armed forces have performed the function of security forces. That is why Parliament, in 1688, resolved that it did not want a standing army. That domestic function has been far greater, in the mind of the security services, over a long period. We have been told that the Russians were planning to invade. I do not know how many people now believe that Mr. Gorbachev is planning an attack on London. According to opinion polls, only 2 per cent. think that a Russian attack is very likely.
The concept of the “enemy within” is central to the issue. The present Prime Minister has made it explicit that the “enemy within” became the dominant consideration of the security services at the time when there was a Socialist challenge to the status quo. Trade unions are, by definition, considered to be potentially subversive by the security services. I know that because my private secretary in one of my Departments tried to take advantage of the scheme for interchange with industry. He said that he did not want an interchange with industry, but that he wanted to go to a trade union for a time. He was warned off because, in the eyes of the establishment that still runs the security services, trade unionism was subversive in itself. I am saying not that the security services believe that every trade unionist is subversive, but that the purpose of trade unionism is subversive.
I want to deal next with the peace movement. The right hon. Member for Henley (Mr. Heseltine), when he was Secretary of State for Defence, was able to instruct MI5 to bug the Campaign for Nuclear Disarmament—the Cathy Massiter case. That shows that anyone whose view of the world differs from the view that peace has been retained by nuclear weapons against the Red Army is a subversive—and that view is still held. No one should imagine that Peter Wright’s story ended with his retirement or with the acquisition of power by the present Government.
Mr. Benn The hon. Member may have more knowledge of these matters than I have, as he speaks with such confidence about what happened, and that illustrates my point. We should have known the information to which, apparently, the hon. Gentleman is privy and we should have had a chance to test the matter. I do not believe for a moment what he has said, but I cannot prove that, and he cannot prove the validity of his remarks, because the whole matter is covered by secrecy.
The next category of people who are considered to be subversive are the various types of Socialists. It is funny that the Communist party is held to be subversive now. As far as I can make out, it is advocating electoral pacts, so the security services do not seem to be up to date. But the people in the security services are not politically clever. I was once invited, as a Minister, to attend a conference of the Socialist International, a respectable body which was then presided over by Willy Brandt. My private secretary said to me that MI5 would not let me go. He said that the reason was that the International Socialists were on our list. He did not know the difference between the International Socialists and the Socialist International. That does not show a high level of political intelligence. There may be a need for more chemists in MI5. Perhaps it would not be a bad idea if MI5 were also to employ people who understand Socialism and realise that there are many varieties of Socialism.
I remember the case of a woman who was refused employment by the Civil Service because her father read The Daily Worker. We should not deceive ourselves that the amendment will be passed, but we can use Parliament to make available through Hansard—the only publicly owned newspaper that has not yet been acquired by Rupert Murdoch—to those who bother to read our speeches the truth about what is happening.
Mr. Winnick Will my right hon. Friend give way?
§Mr. Benn I shall just finish this point.
The security services go to universities and ask teachers about the political activities of particular students who may have applied for a job in the defence industry or the Civil Service. Lecturers have told me that MI5 was sniffing around to find out whether Mr. Jones or Mr. Smith was reliable. If one has a friend who is keen to join the Civil Service, the first advice to give such a young man is, “Don’t go to political meetings, my friend, because if you do, you may not get into the Civil Service.” One reason why the security services and the Civil Service are so ignorant about political argument is that, to join the security services, one must have an unblemished record. One must not even read Campaign Group News or Tribune because that might suggest that one wanted to change the status quo.
§Mr. Norman Buchan (Paisley, South) Will my right hon. Friend give way?
§Mr. Benn Let me finish going through the categories of subversives.
Another category is those who are known to be politically active on an issue that may appear to be harmless. People may be against vivisection, for example, but it is always possible, in the minds of those who sniff around, that such people might take part in other activities that could be threatening. What is misleading is to pretend that the activities of the security services in the past, or the way in which they will operate in future, has anything to do with protecting the people’s democratic rights. They are designed to protect the status quo.
Mr. Benn That is absolutely right. We have not yet discussed the question of vetting. The employees of the BBC are vetted. One cannot get a senior job at the BBC until one has been cleared by the security services. Do they imagine that a lot of terrorists are about to be made head of news and current affairs? The Clerks in this House are vetted. I know that from the evidence given to the Committee of Privileges. Members’ research assistants are vetted. What has that to do with terrorism or espionage?
§Mr. Tony Banks Will my right hon. Friend give way?
§Mr. Benn I do not want to detain the House. I am merely trying to put a few fruits on the harvest festival altar so that people may observe them later.
The next question is, “What is parliamentary democracy?” It has been defined in many different ways. Last summer, we celebrated the tercentenary of 1688—apparently the year of the birth of parliamentary democracy. I should have thought that William of Orange would have been regarded as one of these foreigners trying to disturb parliamentary democracy, but it turns out that he was in at its birth. I am reminded of the saying Why does treason never prosper?
Here’s the reason:
For if it prosper, none dare call it treason. The other day I went through the Second Reading of the Reform Bill. The Conservatives of the time were opposed to the Reform Bill because they thought that it would undermine parliamentary democracy. Mr. Asquith, the great Liberal leader, opposed votes for women on the ground that that proposal would upset parliamentary democracy.
Parliamentary democracy has been defined to mean the status quo at the time. What is it in practice? The Crown in Parliament is sovereign and the powers of the Crown—except for the power to dissolve Parliament or to ask someone to form a Government—are not personal to the 197 sovereign. Every Prime Minister—I do not differentiate between the present Prime Minister and her predecessors in this respect—uses the powers of the Crown to do all sorts of things that have nothing to do with Parliament and nothing to do with democracy. The Prime Minister appoints the Archbishop of Canterbury. What has that to do with Parliament or democracy? The Prime Minister appoints the judges and the chairman of the BBC. She appoints Lord Chalfont to the IBA. The Prime Minister can go to war without consulting Parliament or sign treaties without consulting Parliament. The right hon. Member for Old Bexley and Sidcup (Mr. Heath) signed the treaty of accession to the Common Market before it was even published. All such activities are undertaken under the Crown prerogative.
Suppose that we say that we do not like the use of that prerogative. Is that an attempt to undermine parliamentary democracy by political action? I have long been a republican and I believe that the Queen should be the head of the Commonwealth. Is that subversive? Is it subversive to want to abolish the House of Lords, which has no democratic base in society? Many Liberals have argued for a single Chamber or two elected Chambers. Is that subversive? Is it subversive if I say that the Church should not be established? The other day, I looked up the coronation oath and found that the only pledge that the Queen gives is that she will uphold the rights of the bishops. That is most interesting. It was clearly not applied in the Viraj Mendis case, but that is another matter. There is no democracy in the sense that in a democracy the electorate has the final say. The truth is that the status quo covers a semi-feudal system which is not subject to normal public means of accountability under the Bill.
In a democracy, the ultimate responsibility for deciding the interests of the state lies with the electorate. That is what democracy means. If the electorate is to decide what is in the interests of national security and what is subversive, the electorate must know enough to know what goes on. This Bill tries to entrench in statute a rotten little directive of Maxwell Fyfe, who told them to get on with it and not bother him and a rotten definition by Lord Harris of Greenwich, who used virtually the same phrase as appears in clause 1. On that basis, the Home Secretary hopes to entrench in statute powers that have been exercised under the Crown prerogative for years, and dress it up as the entrenchment of the protection of parliamentary democracy against subversion.
The Home Secretary will not be affected by my arguments, but I hope that people outside will realise when they read them that the Bill is not what it is made out to be. It is not an advance. It is the entrenchment in statute of powers that no democratic Government have the right to exercise.
on behalf of