In the wake of the Article 50 legal challenge, we should keep asking questions about executive powers

In the wake of the Article 50 legal challenge, we should keep asking questions about executive powers

When I started making my documentary in 2009 raising questions about the use of Royal Prerogative executive powers in our democracy, there was little public discussion about the issue. I got laughed at or dismissed by several members of the Government, a Lord and a Royal for making a film about a system that “ain’t broke, so don’t fix it,” as I kept being told. So I carried on asking questions about it.

In the past decade, the odd parliamentary committee, a review of powers by the Ministry of Justice and debate about getting rid of the House of Lords have caused a flutter among constitutionally-minded MPs. But reform of executive powers is notoriously slow and many reform proposals have been quietly shelved, while constitutional questions seem the obsession of only a few civil servants, lawyers and policy wonks.

Rare changes to executive power have happened in recent times but without the kind of wide public debate that they deserve. In 2011, the Coalition Government reduced the government’s executive power to decide when to call a general election and give the people a chance to vote. The Fixed Term Parliaments Act 2011 replaced control by the Queen on advice of the Prime Minister with control by all our elected representatives in Parliament, which seems more democratic.

Yet the Act was brought in without public outcry, despite the fact it is controversial. We should be more curious about asking if this change is democratically advantageous. Although the five-year fixed term can be altered by Parliament, it requires a two thirds majority which could be hard to achieve. What if the Prime Minister, whose governing political party has a mandate from the people, decides it would like to give the people a chance to vote for a new government and elected representatives and Parliament opposes? Is it really less democratic to give people a general election vote if the decision to offer one comes from the Prime Minister rather than Parliament? What if they both had the power to give people a chance to vote?

In recent days the UK and US news have been full of headlines questioning how much executive power leaders should wield in relation to our elected representatives. In his first week of office, President Donald Trump issued 14 Executive Orders and Presidential Memoranda in a frenzied debate between the White House, the press, opposition campaigners and legal experts. As one US journalist specialising in Executive Orders told me, it was “intense” to report. The media discussion could widen the debate in the West, which is a good thing. However, it might be easy to get distracted by President Trump and his Executive Orders since debate about the US constitution and its practices are dramatically framed. Yet what about curiosity about the issues back home?

At the Supreme Court this year, Gina Miller and others won their case against the Government’s attempt to use the Royal Prerogative powers to trigger Article 50 and begin the Brexit process. The legal case was complex. This case challenged the automatic assumption that leaving the European Union and unmaking the relevant treaties was the same as undoing a treaty with, say, Canada. Whereas the UK relates to the EU as a club we are a member of and whose laws automatically confer domestic legal rights, our country relates to a singular and separate country such as Canada as a separate, independent nation. There are plenty of other legal points that were addressed in court by both sides. The point here is that the debate about how our executive should relate to the legislature should not stop following Supreme Court judges’ ruling.

The use of the Prerogative to leave the EU raises unique legal issues. But the context in which this executive power was being used by the Prime Minister was also a one-off. Voters had come out in their millions to decide that they wanted to leave the EU. The Government was simply using its Prerogative powers as it was directed by the people, rather than using it in the usual way without needing direction or authority from the people or their representatives.

Given the political context, shouldn’t we be debating if future referendums give a democratic mandate direct from the people to allow governments to act on a result without additional parliamentary consent? And should Parliament hold government to account more when it uses Prerogative powers in other areas such as going to war, negotiating foreign policy with heads of states or organising the Civil Service?

These days, when you watch the fiery parliamentary debates on democracy, Brexit and how far Parliament should hold the Prime Minister to account, it almost seems that some MPs secretly want to extinguish the role of Prime Minister so that only Parliament can make all the decisions and negotiate with foreign states. Parliament’s role is to hold the Prime Minister to account. But if her powers become increasingly restricted, we could end up with a country led by committee rather than by a leader. Who would the leaders of other nation states negotiate with? What if a parliamentary committee couldn’t reach an agreement?

At other times, Parliament concedes that our leaders have to have the freedom to lead in a democracy. MPs voted last week by 326 to 293 not to have a veto on any Brexit deal negotiated with the EU by the Prime Minister, Theresa May. To do so could have forced her to keep endlessly going back to Brussels if Parliament voted down each final deal.

Now is the time to open up all debate on how our constitution should work. It should be an ongoing debate, not one that shuts down after referendums, specific parliamentary debates and court cases. In our democracy, how should the executive by held accountable without undermining its negotiating position and ability to lead, based on their mandate from the people after a general election?