UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 975-i

House of commons

oral EVIDENCE

TAKEN BEFORE THE

Political and Constitutional Reform Committee

ROLE AND POWERS OF THE Prime Minister

THURSDAY 7 February 2013

Professor ROBERT Hazell CBE

Professor MICHAEL Foley

Evidence heard in Public Questions 67 - 139

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Oral Evidence

Taken before the Political and Constitutional Reform Committee

on Thursday 7 February 2013

Members present:

Mr Graham Allen (Chair)

Mr Christopher Chope

Sheila Gilmore

Andrew Griffiths

Fabian Hamilton

Tristram Hunt

Mrs Eleanor Laing

Stephen Williams

________________

Examination of Witness

Witness: Professor Robert Hazell CBE, Professor of British Politics and Government and Director of the Constitution Unit, UCL, gave evidence.

Chair: Robert, how are you?

Professor Hazell: I am very well, thank you.

Chair: Very good to see you and welcome to the Select Committee. We are looking this morning, with your guidance and that of Professor Michael Foley, at the role and powers of the Prime Minister. This is one of our ongoing inquiries. You do not want to make any opening statements, so if you are ready, we will jump straight into the questions we have for you.

Fabian Hamilton: Good morning, Professor Hazell.

Professor Hazell: Good morning, Mr Hamilton.

Q67 Fabian Hamilton: To start off, what do you think are the positive and negative aspects of the effect of coalition government on the way that the Prime Minister carries out his role? How has it affected this Prime Minister compared to previous Prime Ministers who have had an overall majority in the House of Commons?

Professor Hazell: The main respect is the obvious one, namely that coalition has had quite a severely constraining effect. You can see that in a formal document that the new Government published, I think, on 21 May 2010: of the initial coalition agreements, it is the key procedural annex, called The Coalition Agreement for Stability and Reform. It sets outs in three pages how the new coalition Government proposed to co-ordinate all major decision making and policy making between the two coalition partners. Critically, it constrained the power of the Prime Minister in relation to the way that Cabinet and Cabinet committees would operate, because no Cabinet committee can be established, or its terms of reference set, or its membership set, without the consent of the Deputy Prime Minister; and no ministerial appointments can be made without the consent of the Deputy Prime Minister, nor can Ministers be dismissed without his consent.

Q68 Fabian Hamilton: Are these positives, do you think?

Professor Hazell: I am saying these are all major constraints on the way in which a British Prime Minister can run the Government as head of Government. You will know that, compared with most other heads of Government, the British Prime Minister has, in large part thanks to our unwritten constitution, a relatively free hand. In our system, the Prime Minister’s powers are very extensive and they are constrained largely by political constraints, in particular the size of the Prime Minister’s majority in Parliament, the Prime Minister’s standing in his party and his standing in the country. So the Prime Minister’s power and authority waxes and wanes depending on those political factors.

Q69 Fabian Hamilton: What I am trying to get at is how far has coalition had a positive effect on constraining those powers? Is that a positive in itself, and if it is, how can it be maintained in a majority government where there is no coalition?

Professor Hazell: Whether you regard it as a positive or negative depends on an individual’s perception of whether the Government and the powers of the Prime Minister need constraining, whether we need more of a brake, more of a collective brake, on the way in which the Prime Minister operates and runs the Government. There probably has been, among academics certainly, a majority view that we do need a stronger collective brake.

In terms of how that brake is operated, you will know it is operated in particular through the Cabinet committee system, in that every committee has a Chair from one of the coalition partners and a Deputy Chair from the other coalition party. All the agendas have to be jointly signed off by both Chairs, so everything those committees discuss is jointly agreed and all the decisions made in those Cabinet committees are, in effect, jointly agreed. So that is how, at the apex of Government, through the Cabinet committee system, the coalition operates and all decisions in the new Parliament are coalitionised.

You asked if that could be carried through to single party Government. The most effective way in which it might be carried through would be through the new guidance for the conduct of Government, which is called the Cabinet Manual. As you know, a chapter of that was published in draft before the May 2010 election, and the full Cabinet Manual approved by the new Government was published, from memory, towards the end of 2011. The expectation is that each new administration will revise and re-publish the Cabinet Manual. That is what has happened in New Zealand, and it was from New Zealand that we borrowed the idea of a Cabinet Manual.

Q70 Fabian Hamilton: Forgive me, but I am right in thinking that New Zealand also has an unwritten constitution?

Professor Hazell: It does indeed, yes, and it has a detailed Cabinet Manual, not least because of the experience now of five coalition governments in a row. If this Committee wanted to recommend that the more collegiate style of cabinet government that has undoubtedly been practised under the coalition were to become a norm for future governments, including single party governments, I think the most promising vehicle in which to express that new norm would be a Cabinet Manual.

Q71 Fabian Hamilton: Thank you. In your book, How Coalition Works at the Centre, in chapter 4, you interviewed people. I wonder whether your views and conclusions have changed since those interviews took place in the spring and summer of 2011 and since you published the book, just over a year ago.

Professor Hazell: That is a very fair question to which I cannot give a terribly satisfactory answer. The book was based on very intensive interviews in 2011-from memory, we interviewed almost 150 people-but I have conducted no systematic interviewing since. I make occasional visits to Whitehall-I am going to the Cabinet Office today-so the impressions that I collect now are anecdotal rather than systematic, but the anecdotal impressions are that the coalition continues to operate in the more collegiate manner that I have described, despite its difficulties and disagreements that have surfaced in the press. It is still, I am told, a more harmonious and more collegiate style of operation than we saw under the single party Government led by Tony Blair, in particular because of the very well known deep divide between No. 10 and the Treasury led by Gordon Brown. There is no equivalent to that huge fracture in the Labour Government and the secrecy and very non-collegial behaviour that gave rise to.

The Government in certain respects has slowed down on big policy issues because the coalition partners cannot agree. These have been kicked into the long grass or, at any rate, beyond the next election. We do not know whether a single party Government might have been able to make decisions on some of those big things. On smaller things, the system is very slow. Public appointments, including surprisingly minor public appointments, all have to be jointly signed off by the Prime Minister and Deputy Prime Minister. The word in Whitehall is that those things take months and months, but again, that is not necessarily a feature just of coalition. Famously, under Gordon Brown’s premiership, No. 10 also became a black hole into which things went for decision and did not come out for a very long time.

Fabian Hamilton: All right. Thank you, Professor Hazell.

Q72 Chair: Robert, if I can just leap to prime ministerial powers per se. You have studied these matters in other countries. I wonder if you feel that defining prime ministerial power is better done in other countries than the rather sketchy outline that we have in the UK?

Professor Hazell: I had not done a systematic search. We may be able to assist the Committee if you were interested in how Prime Ministers’ powers are defined in other countries’ written constitutions, but on the whole, they are defined in very brief and sketchy terms. To give you an illustration from the post-war constitution of Japan, it says in Article 68, "The Prime Minister shall appoint the Ministers of State. The Prime Minister may remove the Ministers of State as he chooses" and then in terms of his functions, jumping to Article 72, "The Prime Minister, representing the Cabinet, submits Bills, reports on general and national affairs and foreign narrations to the Diet" that is the Japanese Parliament, "and exercises control and supervision over various administrative branches". It is pretty terse. From the written constitutions I have looked at, that is not untypical in terms of a general description of the functions of the Prime Minister. There may be other clauses in the constitution relating to specific matters that add a bit but, on the whole, the powers of Prime Ministers in written constitutions are not as extensively defined as they are, for example, in our new Cabinet Manual.

Chair: That is very helpful.

Q73 Mr Chope: You say there has been a revival of Cabinet Government because of closer working between the Prime Minister and the Treasury and the Cabinet Office, but is that not really just confined to what I describe as the Gang of Four-the Prime Minister, the Deputy Prime Minister, the Chief Secretary to the Treasury and the Chancellor of the Exchequer, the four of them together? Osborne and the Prime Minister, Danny Alexander and the Deputy Prime Minister, they are, effectively, deciding everything, rather than the Cabinet as a whole deciding on everything.

Professor Hazell: In the chapter of our book that Mr Hamilton referred to, which describes how the coalition operates at the centre, we describe in the first half of that chapter, the formal decision-making process through Cabinet and Cabinet committees that I have already talked about, and in the second half, the informal forums in which business gets brokered before it goes to Cabinet or Cabinet committee. You are quite right: the quartet that you just mentioned-known in Whitehall as the Quad-are a very important informal forum where a lot of business gets brokered initially, in particular any business that has economic or spending implications, hence the presence of the Chancellor and the Chief Secretary to the Treasury. But all that business subsequently goes to one or more Cabinet committees for formal discussion and sign off. This is not bypassing of collective Cabinet decision making; it is pre-cooking.

Q74 Mr Chope: I understand the distinction. I have a particular bee in my bonnet at the moment about collective ministerial responsibility and Mr Speaker has granted me a one and a half hour debate on it next Wednesday. I am looking for some material to fill up that time. I would be grateful if you could tell me what you think is the purpose of having collective ministerial responsibility at all.

Professor Hazell: I can certainly offer you, I hope, a little bit of help. Starting again with the coalition procedural agreement, the Agreement for Stability and Reform, section 2 is headed, Collective Responsibility. Let me briefly read from the beginning: "2.1 The principle of collective responsibility, save where it is explicitly set aside, continues to apply to all Government Ministers. This requires (a) appropriate degree of consultation and discussion among Ministers to provide the opportunity for them to express their views frankly as decisions are reached" and so on. I would maintain that under this coalition Government, the principle of collective responsibility, subject to a few exceptions, has been strongly observed. In particular, the sub-paragraph I read out, "appropriate degree of consultation and discussion among Ministers", arguably was not observed under the previous single party Government, because we know-it is a matter of public record-that the Treasury in particular was not very open in discussing among colleagues some of their spending plans or plans for, occasionally, quite big changes of policy and sprang surprises on their colleagues.

It is a principle, and it is a good principle, a useful principle an important principle, but the extent to which it is observed by different Governments does vary. What I am trying to say is that there is nothing inherent, necessarily, in coalition Government, which makes it harder to observe collective responsibility.

Q75 Mr Chope: You say in your updated memorandum, which you produced in response to this inquiry, under the "Conduct of Cabinet and Parliamentary Business" heading, "Deciding with the Prime Minister when the Cabinet is allowed an opt-out on collective responsibility". Is there any evidence that this a joint decision, because the answer I got to a question I put down last week was that this was purely within the remit of the Prime Minister to set aside collective Cabinet ministerial responsibility. It was not a joint decision.

Professor Hazell: We have all observed instances-if I can go back to the beginning of the coalition, there were four particular items in the initial coalition agreement where the parties expressly agreed that they could disagree. From memory, those were Trident, civil nuclear power, tuition fees and-

Mr Chope: Transferrable allowances.

Professor Hazell: -marriage tax allowances. But we have seen along the road since a few other instances: most recently, perhaps following the collapse of the Deputy Prime Minister’s plans for reform to the House of Lords last September, the withdrawal of support by the Liberal Democrats for the proposed reduction in the size of the House of the Commons. That might be an instance where the Lib Dems decided to disagree; I doubt very much if that decision had the approval of the Prime Minister.

Q76 Mr Chope: Do you think that, if we do have a concept of collective ministerial responsibility that can be set aside, the Prime Minister should be accountable for giving information as to when and in what circumstances it is set aside? Obviously it was set aside in relation to the Electoral Registration and Administration Bill, but we were told that by the Leader of the House, not by anybody else.

Professor Hazell: I am not sure that I understand what lies behind your question or your concern, because I cannot envisage circumstances where it becomes a secret that the coalition partners have decided to disagree, in particular in relation to their voting in Parliament. That is public and visible. We know that both the coalition parties’ backbenchers have voted pretty frequently against the Government line, often on different issues. It has been very rare that the two coalition backbenches have coalesced in a joint rebellion, because the Conservatives tend to rebel over some issues and the Lib Dems tend to rebel over different issues. But that kind of disagreement is very public and widely reported. Have I misunderstood something?

Q77 Mr Chope: I agree with you that there should not be any secret about this, but the reason I asked the question is that I asked the Prime Minister for what reason he set aside collective ministerial responsibility on the Electoral Registration and Administration Bill and when he set it aside, and he has not answered the question-he refuses to answer the question-so obviously he thinks that there must be something embarrassing or secret about this that he does not want to bring out into the open.

Professor Hazell: But-forgive me-it is possible that he did not set it aside. It is possible simply that the Lib Dems rebelled.

Mr Chope: The Leader of the House told me that he did set it aside specifically.

Q78 Chair: Just a general question, Robert, about what you think the impact of the coalition Government has been on the exercise of the Prime Minister’s prerogative powers in general?

Professor Hazell: Again, the exercise of the prerogative powers, to the extent that they fall, in effect, to the Prime Minister to exercise, is now subject to the same coalition constraint, namely full consultation, in particular with the Deputy Prime Minister, and signing off with the coalition partners where it is the kind of power that would go, before the decision was finally made, to a Cabinet committee.

Q79 Chair: Where do we find the Prime Minister’s prerogative powers?

Professor Hazell: You probably know that in the last Parliament, there were a couple of inquiries by the Public Administration Select Committee, under the chairmanship of Tony Wright MP, and that led to a very extensive and, I think, pretty exhaustive list of the prerogative powers. Again, Chairman, in preparation for this hearing, I have done a small search through some countries’ written constitutions to see whether they have the equivalent of prerogative powers. Most constitutions do have some kind of reserve powers, for example for use in national emergencies or the war-making power, and other things that equate to the prerogative powers like the power to confer honours or the power to confer pardons. The prerogative powers, I would suggest, are not as unusual as we suppose that they are. In all political systems, you have to have some kind of system of reserve power.

Q80 Chair: I do not think it is a question of whether they are needed but whether you can find them in a handy place if you are an elector or a Member of Parliament-if they are summed up and collected either in a written constitution or a statute where you can say, "Right, I see that is the relationship of executive power to, for example, legislative power,"

Professor Hazell: Yes, but you will know that the Government headed by Gordon Brown was particularly interested in this. In the big initiative that Gordon Brown announced when he first became Prime Minister to tidy up some of these matters and to finish some of what he regarded as the unfinished business of the constitutional reform agenda left by his predecessor, there was a major exercise in Whitehall. Some of the prerogative powers that had not been regulated by statute have since become regulated by statute, in particular the Constitutional Reform and Governance Act 2010. Part 1 of that Act put the civil service on a statutory footing and part 2 of that Act codified and now regulates by statute parliamentary scrutiny of treaties that had previously been regulated by a convention known as the Ponsonby convention.

If there are prerogative powers that are the concern of this Committee that you feel ought to be regulated by statute, that is the road to go down. It can be done and it has been done. The challenge, in a way, is for you to show which prerogative powers are still the subject of concern and propose ways in which they might be regulated by statute. You may remember that the Public Administration Select Committee, when it grew a little weary of foot-dragging by the Cabinet Office in relation to putting the Civil Service on a statutory footing, published its own draft civil service Bill. It is open to parliamentary committees to try to take a lead or show how something can be done in that way.

Q81 Chair: It is a question of transparency really, more than of what the powers are. It is a second issue at least that if we can see where those powers are, we can hold them to account, certainly as a legislature, a little more easily and explain it to the public a little more easily than if you have to do what John Smith used to call judicial archaeology to find out?

Professor Hazell: Forgive me, let me make my views a bit plainer. I think the concern about the prerogative powers is overstated. We do know what the prerogative powers are. They have been listed and it would be for this Committee, if you felt there were still serious areas of concern, to identify in particular which those areas are and to say how you think those powers should be better regulated because, for me, the task has largely been done.

Chair: Good advice, Robert, thank you.

Q82 Mrs Laing: Carrying on from exactly that point, and looking at the Fixed-term Parliaments Act 2011, it is often said that the effect of that Act was the Prime Minister relinquishing some powers, but is it possible to argue that, in fact, he has gained some powers as far as the codification of his prerogative powers are concerned?

Professor Hazell: No, it was a very significant surrender of prime ministerial power. You will know the advantage that it gave to the incumbent Prime Minister to decide the timing of the next general election-famously, someone once described that as handing the starting pistol to one of the runners in the race. In particular, it gave a political advantage to the incumbent: if he felt, during the second half of a Parliament, that they were suddenly doing rather well in the polls, he might call a snap election. That cannot be done now because under the Fixed-term Parliaments Act, Parliament can only be dissolved in one of two circumstances, both requiring a vote by the House of Commons, so it now rests only with the House of Commons to trigger a mid-term dissolution; otherwise Parliament runs for the full five years and we know the date of the next election. So the Prime Minister, to that extent, is boxed in in a way that previously he was not. For me, that is a very significant surrender of prime ministerial power.

Q83 Mrs Laing: Why would a Prime Minister want to surrender his power? I am asking it in a general way so I do not put you in a position of having to consider the specific issue that occurred in 2010.

Professor Hazell: Forgive me, that is a huge question that I think Tony Blair asked himself more than once, having embarked on a very major programme of constitutional reform, which you will remember.

Mrs Laing: But he did not surrender that power.

Professor Hazell: But he did surrender power in relation to the Human Rights Act that we know he subsequently regretted; the Freedom of Information Act that we certainly know he subsequently regretted; and devolution, which he may in some respects subsequently have regretted. It is too big a question for a parliamentary committee. It is perhaps one for an academic seminar-why do Prime Ministers surrender political power?

Mrs Laing: That is a very good answer, thank you.

Professor Hazell: I am sorry to duck it but there are more important things, if I may say so, to discuss about the impact of the Fixed-term Parliaments Act to which I hope we might get onto.

Mrs Laing: Indeed-please go on.

Professor Hazell: I think there is a really important issue as to whether one of the stated advantages of the Fixed-term Parliaments Act, namely that it might facilitate better long-term planning in Whitehall because we all know the date of the next election, has come about. That is a really important question to which I am afraid I am going to give a slightly disappointing answer, which is that I think it is too early to say, because it is only at the stage that we are entering now in the cycle of a Parliament-the second half of a Parliament-that, if we had not introduced fixed terms, we would begin to get into the debilitating season when the speculation commences, "Will he? Won’t he? When might he? Meet us at the church" or whatever the phraseology is.

Mrs Laing: Yes, exactly.

Professor Hazell: You will recall previous Parliaments where these guessing games were played.

Mrs Laing: Absolutely. Yes.

Professor Hazell: I think we can say, in relation to the planning of one item of Government business-namely the legislative programme-that fixed-term Parliaments will provide greater certainty in the second half of this Parliament, because we know how many legislative terms there are left to May 2015 and Whitehall can plan, reasonably confidently, that they will have a full cycle of legislative terms. In the past, they have never known whether there would be a final term and whether it might be a full term or just a six-month legislative session. In future Parliaments, if fixed-term Parliaments persist-we know that they will be subject to review at the end of the next Parliament, but if they persist-we will have five-year Parliaments with five legislative sessions. That will make quite a big difference to effective planning of the legislative planning.

Q84 Mrs Laing: It makes for better administration, but possibly not better political effect or political control. The Government, as an administrative body, works better with the fixed-term Parliament, but may work less well as a political body?

Professor Hazell: It will be easier for the parliamentary business managers, for parliamentary counsel, for the Legislative Programme Committee of Cabinet and for those Whitehall Departments that are bidding for Bills in future legislative sessions to plan the legislative programme. You probably know that typically the legislative programme is planned not just for next year but for the year after next, and they know that there will be a year after next in terms of a legislative session. All that makes for effective planning.

The difficulty in this Parliament and in its second half will be to discern how much more effectively Whitehall can plan in the medium to longer term when there are, as you will know, huge wider uncertainties to do with the recession, the deficit, the continuing eurozone crisis. All that makes sensible planning-in particular sensible financial planning-in Whitehall, extraordinarily difficult. Those specific factors in this Parliament may outweigh the advantages that I still believe will flow from fixed-term Parliaments.

Q85 Mrs Laing: Thank you. Do you also consider that this might be seen as a precursor of further codification of prerogative powers of the Prime Minister?

Professor Hazell: In effect, the challenge that I threw out to the Chairman was that it falls to those who say the prerogative powers are still a serious problem to identify those prerogative powers that should be the subject of codification. The main one, and it has been very extensively considered, is the war-making power. In the last Parliament and I think the Parliament before that, there was a series of reports from Select Committees and from Government. The difficulty is well known: how do you codify a power that is, in modern times, quite often exercised in what you might call cold blood? The invasion of Iraq was premeditated and we could see it coming. You will remember there was a really important Parliamentary debate and at the end a vote on a substantive motion-

Mrs Laing: Which had no effect.

Professor Hazell: -before the invasion took place.

Mrs Laing: Sorry to interrupt you but, just for clarity, that vote had no effect.

Professor Hazell: It, as I understand it, expressed Parliamentary approval for the planned invasion. Yes?

Mrs Laing: Yes. Of course, it expressed approval, but had it expressed disapproval, then it would have had no effect.

Professor Hazell: Oh, I see. That is a hypothetical that we do not know. I do not know what Tony Blair and his Government would have done if Parliament had voted against the planned invasion. I hope they would then have withdrawn support from the planned invasion, but none of us can speculate on that.

Q86 Mrs Laing: No, indeed. It was unfair to ask you that in this forum. They would not have been obliged to, though. The Prime Minister would not have been obliged to take any action as a result of that vote in Parliament.

Professor Hazell: No. He could formally, in terms of the exercise of the prerogative power to make war, gone to war with the Americans and the other allies against Iraq, but had the House of Commons voted against that in advance, for me, the political risks in the Government then going ahead without parliamentary approval would have been immense.

Q87 Chair: But the vote was not necessary in order to go to war. There was some argument among the hawks about why we were involving Parliament, and it took a great deal of effort-I was one of those putting the effort in-to ensure that Parliament at least made some sort of nominal debate that gave the chance of saying yes or no as a parliamentary forum rather than as a decision.

Professor Hazell: It was more than nominal, you will remember-

Chair: I can remember very well, yes.

Professor Hazell: -on previous debates, I think it is right to say that, technically, the debate was simply on an adjournment motion. One of the big differences in relation to the debate before the invasion of Iraq, and it is to the credit of Robin Cook, then Leader of the House, and Jack Straw, the then Foreign Secretary, that I understand they both insisted that it be a debate on a substantive motion, formally to express Parliament’s approval and endorsement of this very serious, big decision.

Q88 Chair: But that was not a requirement. It was not necessary.

Professor Hazell: It was not a requirement and you will know that there has been speculation ever since on whether that one instance, in effect, has created a convention. I hope that it has, because it was a very important precedent, which no doubt will be referred to on future occasions when we might be planning to go to war. I hope that future Governments may feel bound by that precedent, but we will not know until that comes.

Q89 Chair: Unless we write it down in a war-making powers Act that is binding.

Professor Hazell: Yes. In a way we need not go on about that particular, because that has been very extensively discussed and written about. There are reports, as I said, from parliamentary committees, Government responses and so on.

Q90 Chair: But no action.

Professor Hazell: No action, so the challenge, again, is to draft what might be either a resolution of the House or clauses of a statute that try to define the circumstances in which parliamentary approval would be required.

Chair: If I may just say I did that within weeks of the decision to go to war in Iraq and we still are awaiting a "yes", in this case from the Foreign Secretary.

Q91 Mrs Laing: The Chairman has tried very hard on this issue. Looking at the argument from a slightly different angle, although there was no formal requirement for that debate or that vote or that substantive motion to be put before Parliament, would it be correct to say that there was a political imperative? The Prime Minister’s political judgment at that time was that he wanted to have the backing of the House of Commons to do this and so he put a substantive motion before Parliament. Sometimes the political pressure-the political necessity in any case-outweighs the formal necessity.

Professor Hazell: Yes, and we know quite a lot now about the political context, including the pressure on the Prime Minister from senior members of his Cabinet, from the memoirs that are subsequently being written. There was much greater concern among those colleagues to get a second UN Resolution, which ultimately failed.

Mrs Laing: Of course.

Professor Hazell: Then there was certainly concern to get the support of Parliament. I do not know how much persuading it took to get the Prime Minister on board for that. Forgive me, I have not read his own memoirs on that point.

Q92 Mrs Laing: But is that not irrelevant, the point being that although there is no formal necessity sometimes for the Prime Minister to take certain actions in Parliament like asking for approval, the fact that there are times when he would not exercise his prerogative because of political pressure-I am using the phrase "political" as shorthand for the prevailing mood of the country as reflected in the Prime Minister’s political judgment-shows that that is sometimes stronger than administrative pressure.

Professor Hazell: I think I am in agreement with you in that I do, myself, believe that the 2003 precedent has created a convention.

Mrs Laing: Yes.

Professor Hazell: For me, it is inconceivable that in circumstances similar to the invasion of Iraq where war-making is planned in cold blood, there would not be a parliamentary debate and at the end a vote on a substantive motion.

Mrs Laing: Thank you.

Professor Hazell: I think there is now a very strong political expectation that that is now a requirement before this country goes to war.

Mrs Laing: Thank you.

Chair: Maybe for the record, as a participant in this period, I have to say it was not the chaps who decided to have a debate to legitimise war, in my opinion. It was the fact that we had a majority of Members of Parliament, from all points in the House, who were prepared to attend a parliamentary debate to be held in Church House with Lord Bernard Weatherill, former Speaker, holding the Chair, with a standing order that every Member that attended that debate would have ten minutes, at least, to give their view and that what would be the killer, the clincher was that the BBC were prepared to cover that live from the opening to an open-ended close of that debate. After that became public, that was when the Government decided perhaps this is something that Parliament itself properly should consider.

Q93 Mrs Laing: Given what the Chairman has just said, would it be right to conclude that the evolution of the constitution takes place according to the prevailing public opinion of the moment and not just by what is written down?

Professor Hazell: It is both, and the Chairman has just given a terribly good example and a strong example of the political pressure that you were talking about.

Mrs Laing: Exactly, thank you.

Q94 Chair: Robert, do you think that the Prime Minister’s office would function more effectively as a separate department in its own right?

Professor Hazell: This is the hardy perennial: should we have a Prime Minister’s Department? Wrapped up within it is a question about the size of the staff and whole operation in No. 10, which you will know is, by comparison with other similar-sized countries, remarkably small. Although we have a Prime Minister whose powers are very extensive in terms of his leadership of the Government, he has a very small staffing operation to support him in that. That, in turn, makes it difficult for the Prime Minister himself to lead on more than a very few policy areas, because he just does not have the staff support to enable him to do so.

Famously, perhaps bizarrely, the most effective constraint on the size of the Prime Minister’s staffing is No. 10 Downing Street-the physical capacity of that building. In some respects we do have a Prime Minister’s Department and that is why I am, in a sense, not directly addressing your question about nomenclature. The real issue is the substantive support, and the Prime Minister does now draw more directly on the resources of the Cabinet Office next door. Tony Blair, when he was Prime Minister, in his first term, significantly changed his own description of the Prime Minister’s role and functions, in particular in relation to his leadership of the Cabinet Office which up to that time had been viewed, including by itself, as providing collective support through the Cabinet Secretary to the Cabinet as a whole. It became more directly an office and set of units that provided support, in particular, to the Prime Minister, so a Prime Minister who wants to extend his staffing support can look next door to the Cabinet Office to do so.

Chair: Robert, thank you so much for your time this morning. It has, as always, been fascinating, and we will consider your points in great detail. Thank you so much for coming in.

Professor Hazell: Thank you very much.

Examination of Witness

Witness: Professor Michael Foley, Professor of International Politics, Aberystwyth University, gave evidence.

Q95 Chair: Professor Foley-I sound like Mastermind, "Would you step up to the podium?" Welcome, Michael. It is good to see you. I understand you would like to say something to start us off, which would be very helpful, I am sure.

Professor Foley: Thank you. I understood that I had the privilege to make an opening statement.

Chair: Of course, indeed.

Professor Foley: I am going to make just a small statement concerning my work in the field, which points to shifts in political behaviour and organisational conventions and cultural customs within the British model of Government. In many ways, it can be encapsulated by the proposition of an emergent presidential dimension within our midst.

Basically the work that I have been engaged in for the past 20 years is about how, due to a range of factors, both inside and outside Westminster and Whitehall, there has arisen a highly advanced, sophisticated and influential politics of national leadership in the UK. It is competitive and it is highly contagious. It assumes many forms. It is evident in the normal channels of British politics but, more significantly, it also operates outside them and has been instrumental in creating a largely separate infrastructure of political projection, exchange and analysis.

I am well aware there that at face value such a claim would be appear to be at variance with the positions and logic of a parliamentary system of elections, representation and accountability, yet, notwithstanding the formalities of the British system, substantive changes have occurred. They have led to serious speculation over the position of the Prime Minister in the political process, the role of political leadership within the UK system, the nature of the public’s wider relationship with politics and civil life and even the nature of the British constitution itself. The dynamics of these behavioural shifts, as well as the wider implications suggested by them, are arguably best conveyed through the use of analytical and developmental categories more commonly associated with the presidential politics in the United States.

The case for taking account of the presidential analogy in the UK system is primarily one of looking at the premiership from an altogether different perspective. It is a way of usefully navigating around what is rapidly developing as a hinterland of public politics that increasingly conditions the requirements and co-ordinates of contemporary political leadership. It is because of this hinterland that the worlds of Prime Ministers and party leaders are changing more rapidly than I think is often understood, and none more so than the Prime Minister,

Arguably in the spirit of the British constitution, the premiership has been and is undergoing change through the force of practice and convention. The result, as I see it, is not a pure derivative of institutional authority or established arrangements of power so much as a qualitative shift in forms and interior substances that, in a number of ways, transcends that formal infrastructure of Britain’s political system.

Despite the fact that the presidential analogy in British politics is almost always employed to describe something that is new or unusual or unacceptably alien, the references to an emergent presidentialism have been a consistent feature of political commentary over the past 25 years. Consistency, however, has not always been matched by precision; on the contrary, the utility of the term has been compromised more often than not by its indiscriminate usage to cover a variety of conditions and purposes.

When the presidential analogy is properly used, it does introduce an entirely different perspective on the issue of prime ministerial status. In doing so, it establishes an alternative construction of the evidence surrounding the contemporary nature of the PM’s position and the categories by which the officeholder’s performance is understood. The references to presidentialism within the context of British politics continue to suffer from a good deal of misrepresentation, so I thought it important to be clear about the claims that are not being made. The argument is not that the British Prime Minster is moving towards a fixed condition or model of presidential government. The position is not that there is convergence between the British premiership and, for example, the US presidency. It is not seeking to claim an alien presence.

I see it as very much a British presidency grounded within the evolved practices of the constitution and the latitude provided therein. What is being suggested is that the properties and concepts associated with a US presidency, in particular, have a deep associative and explanatory resonance with the contemporary evolution of the premiership here. In essence, the allusion to the existence of presidential categories and imperatives reveal that the two offices can be seen to be moving along parallel lines of development. This may be a matter of concern.

There are positives, and I think I mentioned this in the written statement; there are positives and negatives in this. Whatever the position, these developments do raise challenging issues. It is not so much that answers are difficult. It is more that we are unaccustomed to know what the questions are in relation to such developments. There has traditionally been a reluctance to specify prime ministerial powers and rules within a constitutional order. If we add to this mix the underlying presence of prerogative powers, the new sources and arenas of power, and juxtapose the cited decline of parts of what used to be a confining landscape such as widely cited erosion of the Cabinet, the marginalisation of Parliament, the decline of parties, the forces of electoral de-alignment, the persistence of distrust in Government and the increasingly opaque nature of policy formation and delivery, then prime ministerial pre-eminence may be said to signify a far more seismic shift than first meets the eye.

I hope these observations made in the written submission will be helpful in raising awareness and the direction of travel, and of providing a way of identifying issues and problems. It does ask serious questions of us, some very stimulating but also some very demanding questions. Thank you.

Q96 Fabian Hamilton: Well, you have certainly made it clear that you think there may be a problem with prime ministerial power, Professor Foley, and obviously how it is described in the exercise. I know you have summarised what you see as the problem. What is the root of the problem and, more important, how do you think we can address it and how do you think we have prospects for reform? What are the prospects for reform?

Professor Foley: It is very difficult.

Q97 Fabian Hamilton: Do we need a written constitution to reform it?

Professor Foley: I should point out that I come as an American specialist-that is where I come from. The reason that I first started moving into observations of British politics was that I noticed a number of parallels going on. If I could just take you back to the US system: the American presidency was not expected to be a great public figure in many respects, but now we assume that it is. Starting with a very informative commentary by an analyst called Kernell, who wrote a book that is now in its fifth edition called Going Public, it is all about how presidents over the 20th century have had to go public, have had to engage in remarkable strategies of outreach in order to remain President. He shows all manner of graphs about moving out of Washington and making speeches, engaging in larger and larger numbers of issues, that it was not just simply about a President being a chief executive, it was something so much more than that. I just felt that there were certain incidences that reminded me very much of the British system and how it was progressing. This is a different sort of conception from being a chief executive. It is almost trying implant the chief executive back into civil society.

One of the pioneers that have been picked out is President Reagan, because what Reagan did as President was start to create a distinction between national leadership and the Government. He would often talk to audiences as if he were part of that audience, part of the Government. So it was not simply a matter of presidents having to go public. I guess it starts off with rhetorical licence at the beginning of the century with Presidents like Woodrow Wilson, and then FDR-President Roosevelt-felt that he wanted to use mass media to get around the intermediary institutional constraints and go direct for public appeals through the radio; that then led off obviously to network television and where we are today, although that has gone much further on into the cyber world.

People like Roosevelt wanted to circumvent the process and get right around to the public, so you had this transmission line trying to deal with Congress but at the same time trying to circumvent Congress. I felt there were a lot of resonances with what was going on with parliamentary party leadership here. I grew up where the Cabinet-Wilson’s Government-contained a lot of big beasts. These beasts were very well known publicly-George Brown, Crossman, Crosland, Barbara Castle and later on Tony Benn, Peter Shore-and you had a sense that the Prime Minister was constrained and constrained by very major big beasts, big figures in the party. So when you talked at A-levels and first degrees about collective Cabinet responsibility, it was credible, it was believable.

Then if you move on through Thatcher, Thatcher did have an alliance with Reagan on ideological grounds but she also had a relationship with Reagan in the way that they saw politics, I think, and civil society, that is that you can start to distinguish between politics and society. Increasingly I felt that Prime Ministers were inhabiting this space.

They seem to occupy a space that is unknown to the British constitution, in my view. You can try and specify what the constitution is, and many very able people have done that, not least Peter Hennessy and Professor Hazell. But coming from an outsider position, I tend to feel the resonance of prime ministerial pre-eminence more at the national level, more at the regional level. I think that is where the problem lies. There is a constitutional mismatch going on here with the British constitution, which certainly I was brought up with in terms of custom and convention. One of the problems of the British constitution is that it allows developments to occur; it allows developments to evolve progressively and to have legitimacy attach to them, but I think a certain point comes when there is something fundamental going on.

Q98 Fabian Hamilton: Professor Foley, you mentioned Peter Hennessy and, as you know, he provided us with a list of the Prime Minister’s present day functions, which I think we sent you. Which of the functions that he records do you view as the most significant and which the most problematic?

Professor Foley: Thank you to the Committee for sending me these functions, I do know Peter Hennessy very well; he is an expert cartographer in the mapping of the major-

Fabian Hamilton: I was not sure you said, "cartographer", I thought you said photographer.

Professor Foley: No, cartographer-he is very good at maps. I do not disagree with anything that he says, it is just that I think I come from a different sort of tradition; I am more of a geologist or a meteorologist.

Fabian Hamilton: Not an archaeologist.

Professor Foley: Yes, I think there are a lot of things going on under the surface here. He labelled it prime ministerial functions, and when I read down them I thought of where that comes in in the British constitution a long time ago. There is not anything that you could contest about the enumeration of the functions; I just feel that there is an accretion of roles building up with the Prime Minister, again through constitutional means, by custom and convention. There does come a point where it becomes qualitative shift. In terms of the summation of powers, again the job specifications seem right, but I kept wondering where it was going to go into a different realm, the sort of realm that I am used to dealing with, and I didn’t feel that it did. The functions are correct, but I just feel there is an enormous landscape here where the Prime Minister has generated and taken advantage of various developments to occupy, as I say, a different constitutional space. I think a PM operates and is in many respects defined by that different constitutional space.

If you ask me about what is missing, I would say that there are various political demands on the PM’s position, representational demands. Going back to the US presidency, if you consider the way that that has graduated beyond just being a chief executive: you have to be-this is American-speak now-you have to be an explainer-in-chief to the public, you have to be an interpreter-in-chief of American society, you have to be a cultural icon, you have to be able to draw all manner of very serious concerns to you as if you understand them and that you have a narrative to explain them, and a sense of the story of where you are going. In many respects you are engaging in highly symbolic representation. I feel that is going on but it is not mentioned.

The other thing I would say, just in passing, is there is an allusion to international responsibilities but that is very short. Coming from where I come from, international politics, I would have to think that there are any number of roles that a Prime Minister has to play in terms of global governance, regional integration, regulatory regimes, policy networks and judicial decisions. All these are engaged in structurally. I guess if you were to ask me what is the one which one worries me most, it is probably about the legal highs of prerogative powers.

Q99 Chair: I am sorry, the legal what?

Professor Foley: What I am saying is the one that concerns me the most is the legal highs of prerogative powers, especially in concerns with military deployments, peace and war and various things and how that is conducted.

Chair: Thank you very much.

Professor Foley: I do think it is one of the areas where there is a difference between the British and the American system. The American system provides through the constitution, which is a very broadly defined constitution-you might say very inadequate-reference points that you can argue over. So it gives you a grounding in the constitutional argument that can then translate itself into political arguments. That does not mean to say that it is all resolved, because I think there are any number of ways that a constitution can constrain executive power, and we have to remind ourselves that executive power is the keynote test of a constitution-"taming the prince" as it is often called. You can try and specify it through law, you can do it from the other side and you try to establish a bill of rights, which comes to the problem from the reverse side, or you can create checks and balances.

Fabian Hamilton: Thank you, Professor Foley, that is very helpful.

Q100 Tristram Hunt: Professor, that seems a slightly strange argument to make on this day of all days, when we have read in the newspaper that the President operates what has been termed a "Tuesday Kill List" for drone strikes without any oversight over it at all. So the American presidential checks and balances seems a rather flimsy basis.

Professor Foley: There is a point in that but what it is it is announcing the beginning of a debate.

Q101 Tristram Hunt: Even though the events have been going on for four or five years.

Professor Foley: Yes, there is a good deal of latitude concerned with presidential power in the area of the foreign and defence policy and security policy, that is true, but if you wanted to make a counter-argument then you can, and it is just beginning to be made, about whether this is contrary to first of all constitutional law and whether it is contrary to civil liberties, as well, as to how you distinguish drone strikes and the indiscriminate nature of drone strikes. So it is already building.

Disputed boundaries is what you have in the United States. Now, if Members of Congress-and even the Supreme Court on occasions-feel that they wish to get involved in this issue, they can do. There is nothing to stop them doing it and I think they are beginning to do that. So yes, you are right, but on the other hand there is traction there that is missing here, because you do not have that codification. You could call it codification or you could call it a sense of what is legitimately correct in these sorts of issues.

Q102 Tristram Hunt: But isn’t what you have explained about the cultural power of presidency, the power of leadership, and then the growth of UK prime ministerial powers along a British presidential model, that does not seem particular to the UK relative to the Italian premiership or the French premiership or, given the sort of enthusiasm for Borgen, the Danish prime ministership. This seems a modern cultural phenomenon that is uniform across both Continental democracies and Westminster style ones?

Professor Foley: Yes. I come from the American perspective in that respect, but I realise that there are trends that cross different regions, different areas of the world. I am always a bit wary about using comparative politics, where you can join in umpteen examples to show something, because if you dig away at them they are often quite different in respect of trying to make generalisations-take Berlusconi for instance. There is a view that this is the way Western democracies are leading in one respect. This whole set of issues is plagued with disjunction because on the one side you have leaders engaging in all sorts of narratives to do with national leadership, symbolic representation and engaging a civil society in all manner of different respects, and on the other side you have a very flat down view of politics that is concerned with what is often called in the US post-electoral democracy-that elections do not really determine anything; what you have is an ongoing set of substructures and sub-communities, policy communities, think tanks, judicial decisions, regional integration, which does not play into the notion of dramatic leadership or leadership that has a sense of direction and vision. That sounds to me very common in many Western democracies. It is just that I think the US has far more experience of that.

Q103 Tristram Hunt: Do you accept any of the argument that the Prime Minister’s office needs the flexibility that comes with the absence of those specific codifications?

Professor Foley: That is very difficult to tell because in many respects the Prime Minister’s office is a fiction, because it is so small. I think it has been recorded how small it is, which shows that the Prime Minister is not particularly powerful, and then you compare it to the US President, which has a high power rating but also has a huge office of 1,500 to 2,000 people. That is a very a good question, because on the other hand it shows the PM is different from other Ministers, because he or she does not have a department and depends a great deal on the Cabinet Office and civil servants on secondment. I think I would prefer greater clarity on that: just have a Prime Minister’s Department, so that you would know. It would try to lever us away from this notion the Prime Minister has no department whatever, which you find in constitutional textbooks. The big beasts in the jungle are still the Ministers, and the Prime Minister is marginalised because the Prime Minister has no department.

Q104 Tristram Hunt: Does that not just depend on politics? We can set up as many systems as we like and all the rest of it, but it depends on the personal strengths of the individual people-even if you set up systems, actually politics is about who is up, who is down, who is in, who is out, and you cannot really provide specifications for that.

Professor Foley: That is supposed to be the great quality of the British constitution: it is a so-called political constitution and the constitution follows the wider currents of social thinking. I just think that where you get to areas of significance, it would help to inform debate and also provide the traction of debate if you had it somewhere codified what the Prime Minister’s powers are.

Q105 Tristram Hunt: We have Peter’s list, which you have issues with. How would you create a frame of reference? Is that something we should do in our Committee? You have explained how a debate can begin in America because you have what you regard as the explanation of limited executive power; how would you do that in the UK?

Professor Foley: I just think if you were able to codify it, even though it was incredibly vague and had such broad reach, it would give those who are dissidents some traction as to how you could make what is immediately regarded as a party political debate into much more of a constitutional political debate, which is what I think the Americans are particularly good at. They are used to that. We are not used to it.

You were talking with Professor Hazell about war powers. There is a constraint based upon disputed boundaries. You do not have to have, "This will not happen, this will not happen, this will not happen." You can have a debate on disputed boundaries. Nobody knows the end result of disputed boundaries, but what it does mean is that the Congress can-and did in 1973-pass a war powers resolution. They have been arguing about that ever since. What has happened is a bit like the treaty-making powers in Congress: they often do not pass a treaty but they assume that they have to honour it, so that keeps the leverage there. That is very common actually. With war powers, Presidents have not accepted the War Powers Act but what they do is, in any particular declaration where they need to have a military force engaged in part of the world, they have gone through the motions of it. Specifically they do not say, "This is not to say that we agree to the War Powers Act but in the spirit"-this sounds very British constitution-"of the War Powers Act, we are informing you that within 48 hours …". That is the idea of it: you have to declare to Congress or Congressional leaders that within 48 hours you are about to attack a particular country. So they go through that and it remains in suspension all the time; it depends how the landscape changes. That has gone on since 1973. So no American President has approved of the War Powers Act, but what they do is try to comply with the spirit of it, which means that Congress has an ability to say, "This is not warranted. We will have to look at this carefully." Also what Congress did in that War Powers Act is they engaged in a passive veto. There are two types of veto in Congress: an active veto where we say, "No, we don’t agree," and a passive veto where "You have 60 or 90 days"- that is what it says in the War Powers Act-"to prove your point. And if we do not agree or we cannot find any sense of consensus on this and we do not act, that can be taken as dissent and you have to revoke what you have done." That is the War Powers Act.

Presidents have had to move in and out of this for the last generation. You might say, "Well, that doesn’t add up to much because Congress has not done it" but Presidents know that and they know that Congress can root that back to the fundamenta of the US constitution, where Congress declares war but the President is Commander-in-Chief. So you have had that tension going on.

I do not think that is a major problem or that you have to decide all these issues-that it is either one or the other-but it is to try and generate that kind of debate that can go on and can be very effective.

Tristram Hunt: Thank you.

Q106 Sheila Gilmore: Professor Foley you said that it is a long-term process in the British political structure that has transformed the office of the Prime Minister in a more presidential direction. Can you give specific examples, just one or two of that change that you think are worth drawing out?

Professor Foley: I think when I was growing up, doing A-level British constitution, it was one of the major players and you tracked those as to how a Cabinet was going to be-we all know that Harold Wilson spent more time deciding on how to construct a Cabinet than anything else, because it always it had to be very carefully balanced between different wings and different persuasions within the party. The thing that I kept noticing was-this may sound rather insubstantial-I remember Harold Wilson as Prime Minister talking about "our people". Now, "our people" meant the Labour Party supporters. That notion that you are only talking for your people has gone, as far as I am concerned. You are talking about us, the nation, the centre ground, even some sort of middle England. There is much greater use of the first person singular-it is "I", it is "me", it is "my vision", it is "my background and how it was formed, how "I will never let the NHS down because of what it has done for my family"-that sense of personal vision, which has to be backed up by your sense of a personal journey. That is very strong.

Then I remember party conferences that used to be somewhat chaotic. They are not chaotic any more; they are very much like American conventions, as far as I can see-very stage-managed; it is as if you are on show. One of the stories that I always remember is I think in Kenneth Harris’ biography of Clement Attlee. Clement Attlee was most put out when he was staying with his wife in a bed and breakfast, probably in Blackpool, in which he was recognised as the Prime Minister and he thought this was a gross invasion of his privacy. That is just a small story but it stuck with me. David Malcolm used to talk about club government-you are in a club but you do not expect people outside the club notice you or even know who you are. Now you are on public display the entire time, and you have to be involved. This is where I did feel that things were changing quite rapidly, because of what you are expected to talk on and what you are expected to engage in-a huge array of different issues that I do not remember Prime Ministers in the past having to engage with at all. I started a log at one stage, but I had to give up because it had so many entries, of what David Cameron was engaged with on a daily basis. It was massive. I will not give you all the details but it ran over to two pages and you did feel that it wasn’t so much that David Cameron had a passion about these issues as it was that he had to be involved in these issues. These are often very minor issues; it could be racism in football or something like that.

Q107 Sheila Gilmore: A lot of these changes have been brought about by the mass media. When Attlee was Prime Minister, television was in its infancy or virtually didn’t exist so you did not have the kind of visual recognition that grows. Newspapers didn’t have many photographs either, I suspect. The mass media is driving a lot of this and a lot of people feel you have to comment on everything, because news goes on and on. Is there any way in which a constitutional change could counter that?

Professor Foley: That is a good question. I am not sure about that, because when I was thinking through some of these questions, one of the things I came up with was when you could have a counter-platform rooted in Parliament. What Prime Ministers have been very good at and have to be very good at-I think maybe Gordon Brown is one of the best examples of how things have changed, because there you have one of the big beasts of the past who seemed highly unacclimatised to this kind of new politics. That was a three-year passage for me, which was quite difficult to witness because I can imagine that in the past he would have been a perfectly successful Prime Minister, but in the present, no. A lot of that was due to this massive exposure that Prime Ministers not only have but they are expected to have through their parties because they are the main promoters, I think, of this. You have to have a successful national leader with a sense of vision and to engage in all number of issues. You have to have a broad remit, a wide palette of issues to do that.

The only way that I could think that you could counter this in a parliamentary sense is to have a different platform. Thinking about what sort of platform it might be, because there is nothing wrong in pointing out constitutional uncertainty, I think it is harder when you do not have a codified constitution, but there is nothing wrong in doing that. It might well be-I am going back to prerogative powers because this is probably the keynote area here-that many websites and NGOs do watch searches; they are on watch. You could have a very successful parliamentary kind of NGO which looked at the prerogative watch committee, in which you are looking at how prerogatives are used. Again, this is something that Senators in the US pick up on very quickly, because they also have their own sense of prerogative, despite the fact that it is a republic: it does not come from the Crown prerogative, but over custom and practice and the constitution, there is something called executive privilege. That is what President Nixon used to constantly refer to-people are getting too close to the presidency, and they do not understand or they do no satisfactorily reflect executive privilege. That is almost exactly the same as Crown prerogative. Nevertheless, there are movements, there are cases, there are currents within Congress that do that, and I think-even if it can only be done in a very broad way-it does give you that traction to have a look at what is going on. Whether it is in the security and intelligence services, whether it is engaging in a practice, or where the UK is involved in terms of foreign affairs. It is a way of opening up that debate.

Sheila Gilmore: Thank you. I am going to be very rude now, but I have to leave because I have to go to a Bill Committee.

Q108 Mrs Laing: It is interesting to hear your comparisons between what happens in the UK and in the US, and in particular the concept of the President being separate from both Houses and the other parts of Government. I happened to be in the US during the latter weeks of December and watched every hour of every day the unfolding chaos of what was referred to as the fiscal cliff problem. Surely that sort of separation within Government and the conflict that arises from it is no way to run a circus?

Professor Foley: Probably not. However, it does create friction and within that degree of friction other things are probably beneficial.

Q109 Mrs Laing: Sorry, can we just go back? You say it is probably beneficial to have that friction?

Professor Foley: Yes.

Q110 Mrs Laing: But is it beneficial to have the world’s largest economy teetering on the brink and people flying 3,000 miles to make a vote on the last day of the year, before the clock strikes midnight? This is the 21st century.

Professor Foley: Yes, it may be 21st century democracy. We have a coalition Government now. It would appear that another hung Parliament is likely. What we are not used to here is coalitional politics still, whereas I think in the US it is just regarded as meat and drink-that’s what you do. If you had to go up to brinkmanship, they will go up to brinkmanship, even if the Government runs out of money. That does not mean to say that it is a particularly effective or coherent way of doing it but a lot of other issues get thrown out in that centrifugal force of getting up to the deadlines. So I am not sure about that. In a way it is the sort of political democracy that we are not used to and we find it difficult to take seriously. It is not particularly effective sometimes, but then challenge and dissent is not particularly effective.

Q111 Mrs Laing: Are there not ways of bringing about friction and challenge and dissent that do not have the dramatic consequences of the fiscal cliff type of situation?

Professor Foley: I think in the US where you have a Democrat in the White House and you have an increasingly polarised party system-which is, again, unusual-over the last 10 to 15 years, it does raise serious questions, yes. But to see the model in its worst sense is not to discard everything about it.

Q112 Mrs Laing: Looking at the whole point of prime ministerial powers from a different angle, when Margaret Thatcher was Prime Minister, in the latter years of her premiership, Cabinet meetings were quite short, sometimes an hour or less. An immediate difference was noticed when John Major became Prime Minister in November 1990: the length of Cabinet meetings immediately doubled or tripled. Would it be right to say that the issue of collective responsibility and the amount of discussion that goes on possibly depends on the style of a particular personality?

Professor Foley: Sure, yes, and also their standing and status. John Major, I think, felt he had to, Margaret Thatcher did not. I do not know about Cabinet responsibility because it is very difficult to know-you have to rely on memoirs and goodness knows what else-what did happen in Cabinet in many respects. John Major had a different style-he liked to listen to all manner of opinions first and then come to a decision-whereas Margaret Thatcher had an opinion to start with and everybody knew what that was and knew how to defer to a major force in that respect. So it does depend on personal style, I think, but John Major was also faced with a very difficult situation, with having a very small majority. So when small majorities get even smaller, I think Ministers, and also Backbench key figures, get more powerful, but it can be very much the edge of dissent rather than being constructive. I think John Major’s premiership probably showed that to full effect.

Q113 Mrs Laing: I wanted to refer to what you have written about possible forms of corrective rebalancing and the unbalanced and disproportionate positional influence of dominant prime ministerial figures-just what we were talking about. How would those rebalancing measures work in practice?

Professor Foley: Well, I am thinking that we are in a different kind of landscape, insofar as you have increasing prime ministerial pre-eminence but it is based on the notion of national and popular leadership. How do you bring this in line with the British constitution? One way you could do that is direct election of the Prime Minister. That is very radical, of course, but you could make a claim that that is bringing it into line with the position the Prime Ministers hold. You could claim that there is insufficient accountability of prime ministerial power without direct elections. You could claim also that prime ministerial elections could create a counter to the syndrome of hung Parliaments, especially for Parliaments now that run for five years. ou have to get into the psychology of this. It may be that a Parliament is becoming increasingly dissent-ridden and even dissolute after three years, but you know you have to wait for the most part for five years. You could have another hung Parliament on that. That is also known to be five years. So you could create a sense of a gridlock in which a prime ministerial direct election might be the way of creating a dynamic leadership within Government.

That is very much how the modern presidency came to the fore, because you had the same thing in Congress, with four years, four years, four years and two years for the House of Representatives. The way you break that is having a sense of a vital figure at the centre of politics in the US. If you go down to five years plus five years plus five years, you open up that debate much more than you did before to people. When I say "people" I mean the citizenry could get fed up with five years, thinking, "After three years this Parliament is not really working, what we need is a Prime Minister who can sort them out." In a way it is just an antidote to coalitional politics but it is also an accelerant to coalitional politics. My own view is that it could be a corrective to what in the States is termed post-electoral democracy where so many decisions are not decided on the basis of elections at all.

Q114 Andrew Griffiths: Professor Foley, I think you were just saying there is a lack of accountability without direct elections of the Prime Minister or the President, but surely if there were directly elected Prime Ministers or a President, that would be less accountable because you would only have to be accountable to the electorate once every five years whereas the Prime Minister is accountable to Parliament and we see all too often that the Prime Minister is not able to get his way in Parliament because various Members of the coalition or Members of Parliament choose to disagree and vote against him.

Professor Foley: That does remind me very much of the American system: you can have a programme but you cannot get it through. That is what President Obama is facing on a number of counts. I just think if you had direct elections, you would at least have an argument going on.

Q115 Andrew Griffiths: Arguments are the one thing we are not short of.

Professor Foley: You could have an argument rooted through a sense of constitutionality. The big problem with the constitution in western democracy is always the Executive. What do you do with the Executive? It is often called "the prince" in the Machiavellian term. How do you control the prince? I do not know whether we have it right at the moment, I am fully conscious of the channels of accountability in the British constitution as it currently works. I am not sure with hung Parliaments where that goes. I am not sure with a completely different dimension of politics that is expanding almost by the hour. Prime Ministers are very well rooted into this-they almost have to be.

One of the things I am looking at at the moment is Obama’s re-election in using cyber power. He is running circles around Opposition and around Members of Congress and the Senators by simply leaving them aside and going straight to the people with notions of populist interest. I think that is going on here as well. The Obama team were running the election 60 times a day through their computers and they had samples in various key states, marginal states, swing states and in the swing constituencies within the swing states, of incredible sophistication, so that they knew when things were moving slightly against Obama within 12 hours and then he made statements in order to bring them back. This will happen here, I would imagine. There is no doubt about it-in fact some of the Obama team is already coming in over here.

The British constitution, as it is designed, often works very well; it is when it does not that I think is a matter of concern. It is a matter of civic concern. Politics just seems to be taking the place so much away from the major institutions that we are used to. It is very sophisticated and it is very demanding, but it does seem to be very effective.

Q116 Andrew Griffiths: Just very briefly going back to something else you said earlier, you said that were surprised that the Prime Minister had such a busy day, that there were so many variables. You talked about racism in football. Why does that surprise you?

Professor Foley: It surprised me because I do not think Prime Ministers in the past would be bothered by such things. It is because it is a 24-hour rolling news, and the Prime Ministers have to be so closely integrated with this in order to maintain their position of being on top of the major issues or having at least something to say. In the States they talk about voices-what voters want to hear are their voices coming back. So I think one of the things like prime ministerial approval is a very interesting topic because what are voters actually approving of? Is it that someone like David Cameron says the sort of things that they agree with, or is it that he is saying things almost on an everyday basis that show that he has a commanding presence, he is in charge of events, he has a populist concern about people’s anxieties and concerns as they affect normal people.

I think one of the panel mentioned what is different. One of the things that I picked up that was very different is they do not mention the party very often. They see themselves as popular leaders. They are highly symbolic leaders-they are in a way explainers-in-chief, they are interpreters-in-chief and they are representatives-in-chief. The more you keep doing that and draw media towards you, then that is all people out in the hinterland see. They do not see much of Parliament, they do not see much of the House of Commons at all, they might see a bit of Prime Minister’s question time but they see David Cameron talking on the issues of the day on a rolling basis. That does have an effect. That is presidential politics.

Q117 Andrew Griffiths: Earlier you gave comparatives and you have written that the structures of power beneath the Prime Minister are utterly opaque. We have heard a little bit about the US but how does that compare to other western democracies?

Professor Foley: It is difficult, because they tend to operate under quite difficult localised cultures. If you want a generic trend, it is towards this notion of the Prime Minister as the key player, but it does not tend to come through institutional forces; it tends to come through the populist forces in that respect.

Q118 Andrew Griffiths: Would you say, for instance, that the President of France’s office is any more transparent than David Cameron’s is? Is Angela Merkel’s Cabinet more transparent?

Professor Foley: I have to be careful what I say because I don’t know the exact answer as to whether they are more transparent. What I would say is that they are more transparently integrated into a constitutional order. I think that is the difference. The British constitution is very flexible and that is its glory, but occasionally it has blind spots.

Q119 Andrew Griffiths: Just very quickly, how do you think we could improve the transparency? What would be your remedy?

Professor Foley: Well, there is a Liaison Committee, of course. There is something that I would like to see, which is a prerogative watch committee. I wouldn’t mind seeing a Prime Minister giving a state of the nation address to Parliament. I wouldn’t mind Parliament having a constitutional council. I just like the idea of constitutional uncertainty-that Prime Ministers cannot always assume that whatever they are doing is constitutional, whereas usually it is a matter of what they doing is politically supported. I do think that in the US, albeit it can be expensive, it can be wasteful in terms of mixing politics with the constitution, which is what they do, it is what they are used to.

Q120 Stephen Williams: The problem with being last is everyone has asked everything that has been scheduled to be asked and has asked it more than once, so I’m winging it slightly here. Do you watch Prime Minister’s question time?

Professor Foley: Yes, only in part.

Stephen Williams: Is that because you cannot bear it or-

Professor Foley: No, I am usually teaching.

Q121 Stephen Williams: I watched Australian Prime Minister’s question time while on a visit to Canberra, so I know they do it. Do other comparable democracies put their Prime Minister through this weekly occasion?

Professor Foley: I am not qualified to make a big judgment on that because I do not know enough about different democracies around the world. There are occasions where there are Prime Minister’s questions. That is not really answering your question but I would say whether that amounts to full accountability is open to question.

Q122 Stephen Williams: What I was going to try to lead you on to was whether you think Parliament effectively scrutinises the Prime Minister at the moment. Does the Prime Minister genuinely feel accountable to Parliament, or does he feel accountable to his parliamentary party, to the media, or to the country? Who do you think worries him the most?

Professor Foley: The country and media players, but increasingly it is not just media players like there used to be-the press barons or the network television. It is how you to choose to play the social media. I know this is slightly getting off the point but one of the things that I was interested but also entertained by was that in the Vatican there are criticisms of the Pope of not engaging enough in public-not choosing the strategy of going public enough. The Vatican is very attentive towards mass media-it has its own radio station and TV station-but what they said the Pope had to do was to get onto Facebook and to get onto Twitter. Now that has happened.

Q123 Stephen Williams: Do you think anyone seriously believed that the Pope is currently with his iPad in St Peter’s looking at tweets?

Professor Foley: No.

Q124 Stephen Williams: It is cosmetic. That is cosmetic accountability, is it not?

Professor Foley: Yes, but it shows the pressures, that is what I meant. It shows the pressures to conform to this new kind of engagement and communication.

Q125 Stephen Williams: That is being seen to be making an attempt at being accountable but I am talking about genuine accountability. Who should be feeling the collar of the Prime Minister, who should be breathing down his neck, who should be making him afraid? We have heard that in the past Prime Ministers were terrified of Prime Minister’s question time-before parliamentary occasions I think Macmillan used to throw up or something. Do you think recent holders of the office have been scared of Parliament?

Professor Foley: I think they are scared because it could be a source of public embarrassment because it is televised. I am sure they work very hard at Prime Minister’s questions-as you know they try to predict what is coming up and have an answer for it. So I have no doubt that that is a conditioning factor. But 30 minutes a week? I do not see it as very profound.

Q126 Stephen Williams: Do you think Parliament should perhaps change that? The Prime Minister is the only Member of the Cabinet who answers questions every week. Other Cabinet Ministers do it once a month for an hour; do you think that would be a better model?

Professor Foley: Sorry, the model of?

Stephen Williams: The Chancellor of the Exchequer or the Home Secretary appear before Parliament once a month to answer departmental questions but it is for an hour and it is a mixture of tabled questions and topical questions. Do you think that would be a better model?

Professor Foley: I doubt it.

Q127 Stephen Williams: Is that because you think Parliament is not up to scrutinising each other?

Professor Foley: I think they are, but I think they are inhibited by the constitutional imperatives. That is the problem. That is trying to square the circle. I would like to see the Prime Minister facing a Committee like this, talking seriously about how you make decisions-very significant strategic or national security decisions. All right, maybe he is here for 30 minutes, but I think it would make a big difference.

Q128 Stephen Williams: That leads me to think about the Liaison Committee, which I think Blair was the first to appear before, but it is only twice per year. Do you think that should be more frequent?

Professor Foley: Yes.

Stephen Williams: The Deputy Prime Minister, while we were more concerned about same-sex marriage-rightly so I think-on Tuesday has now set the precedent of appearing before that Committee as well.

Professor Foley: It all helps to call what is a very significant player in politics to account, yes.

Q129 Stephen Williams: What about scrutiny from people outside Parliament? Comparing it with the American President, obviously the President does not answer questions in Congress, but he has frequent press conferences in the White House Press Room.

Professor Foley: Exactly, yes.

Stephen Williams: Whereas if you listen to journalists here they are moaning quite a lot at the moment that this Prime Minister seems to have abandoned monthly press conferences that Brown and Blair did before him.

Professor Foley: Yes. That is where conventions can work both ways, because they developed a convention, Blair and Brown, and the British constitution is good at taking conventions but then not really complying with them later on. I think if the conventions worked, there should far more frequent press conferences.

Q130 Stephen Williams: Does that not take us back to the heart of this inquiry: that the practices of the Prime Minister, the conventions, are the property of the officeholder rather than the property of the people or Parliament? So this Prime Minister decided, "I am not going to be scrutinised every month by the press," and who can tell him that he should be?

Professor Foley: Yes, that is the problem because the trump card is parliamentary sovereignty-there is accountability through Parliament and the next election. It is a very broad-brush stroke of accountability to do that.

Q131 Stephen Williams: A final thing that occurred to me when you were talking about how the Prime Minister has morphed into the same sort of person as the President, being expected to comment on everything-the latest tragedy that has taken place somewhere in the country, and knowing all about trivia and TV soap operas or whatever. Maybe we can’t stop that because of the age in which we live, but for the issues that are under our control in Parliament, do you think it is right that the Prime Minister should be expected to know everything about what is potentially taking place in streets in major cities? Effectively, it is almost like questions to the Mayor of Bristol on many occasions, rather than questions to the Prime Minister. Should there perhaps be more of a parliamentary rule that you ask the Prime Minister about things that he is responsible for and not play the game of thinking he should comment on whether there should be a new set of railings outside a school?

Professor Foley: That is a very good point: try to concentrate the accountability aspect into areas that are central to the Prime Minister. The trouble is you have this extensive remit that goes on all the time because journalists expect the Prime Minister to have a statement on what is happening out there at the moment, and they will and so will the Leader of the Opposition, because it is the politics of national leadership. It is a good point, yes, I like that point.

Q132 Chair: Michael, does it amuse you that the Executive, whether it is Mr Blair or Mr Cameron, think it is something for everyone else that there should be direct elections in Bristol for the Mayor, or in Nottingham, but when it comes to their own front door and a Mayor for the whole of the United Kingdom-an elected Prime Minister, directly elected by the people-they seem to draw the line? It is good for everyone else but not for them?

Professor Foley: That is right, yes. Yes, I have noticed that.

Q133 Chair: I could really get into the stuff that you have mentioned on effective accountability rather than formal and nominal accountability. I might even argue that there is too much formal accountability when I look at the Minsters rolling up to do endless adjournment debates, I am therefore clearer as to why departments do not have a strategic view very often. However, that is not an argument against accountability; it is an argument for effective accountability. You did touch on the idea of having slightly more intimate exchanges with Ministers and indeed the Prime Minister.

Just for the record, the Liaison Committee has 25 Chairs all around the table, all desperate to try to get in their two-pennyworth, which any effective politician can dodge or divert. It could be that more effective accountability is being a bit more disciplined and having three people going at it for a full hour, and they would have to be properly briefed as well as the Prime Minister. Is that something that might be useful in examining prime ministerial power?

Professor Foley: I think so. The arena is there; it is a matter of how it is used, how it is set up and whether it attracts public attention as well. It should do. As I think I mentioned to you when we talked on the phone, one my first introductions to separation of powers politics was seeing Ted Kennedy in charge of the health committee in the Senate and he was being advised by probably 100 staff as to the questions he needed to ask to the Secretary of Health, Education and Welfare at the time. It was quite clear that the power of information was dominant there. He had better information than the Secretary of Health and he was just pummelling the Secretary of Health. He would take another question from behind him and say, "I would like to ask you about this." Then he had the drug companies in and he just made mincemeat of them as well. It was a very small committee-probably the size of the Committee that you have here-but supremely well staffed and well informed. I saw the CEOs of drug companies outside in the gents and they were being sick, such was the fear factor.

Q134 Chair: This was in America?

Professor Foley: Yes.

Q135 Chair: Not just before this Committee started?

Michael, we will have to be very quick on my questions and answers because we are overrunning just a little bit. Do you think it is appropriate for the British public to know what the powers of the Prime Minister are?

Professor Foley: Yes, I do think that is right.

Q136 Chair: Do you think they, or indeed Members of Parliament, know what they are?

Professor Foley: Of course, yes, naturally.

Q137 Chair: Are they on the list that you were provided with from Professor Hennessy?

Professor Foley: Some are getting near it, but I think I could devise another list.

Q138 Chair: Do you think one of the ways to move this forward is to define all the powers of the Prime Minister and put them in one place, so that anybody can pick up that statute and know the Prime Minister’s powers and the relationship to other parts of the constitution?

Professor Foley: I think it is essential really. It does not mean to say that everything will be resolved, it is merely going back to, I suppose, what I am used to in the American system, where there are disputed boundaries. It opens up debate and it opens up the traction of political dissent and argument as to what these boundaries are and how they impact on certain particular occasions. I do not know now if David Cameron wanted to engage in military incursion perhaps in North Africa. I do not know what the convention is, or whether it is a convention, or whether it is a sustained convention as to going to the Parliament, I do not know.

Q139 Chair: We heard earlier in discussion with Professor Hazell that somehow the politics will take care of this. I have to say in getting Government to bring a resolution, a motion, on the Iraq war, the politics were incredibly difficult-getting enough people to put that pressure on, organising to set up an alternative Parliament if it was not done and, may I say, suffering pretty serious collateral damage to a number of careers, perhaps including my own. We got it done but it was not done as of right because Parliament could say to the Executive, "You need to discuss this with us at some point in the action." It was by energy and by a particular group of personalities probably.

Professor Foley: I can well imagine behind the scenes, yes. But there are costs. That is the problem.

Chair: Michael, it has been incredibly helpful, there was one very useful answer that I do not think we quite teased out from you, which you gave to my colleague Andrew, where you were discussing some of the specifics. You mentioned the watch committee concept, a constitutional council and codification. Perhaps we could take the liberty of writing to you and just pushing you a little further on Mr Griffiths’ question?

Professor Foley: I am happy to be pushed.

Chair: Michael, thank you so much for coming this morning. It’s been a great pleasure to see you.

Professor Foley: And a pleasure to be here.

Chair: Thank you. Thank you, colleagues.

Prepared 13th February 2013