Controls on Royal Prerogative PDF

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Feryal Fekri Title: Controls on Royal Prerogative The Royal Prerogative is one of the most significant elements of the UK’s constitution. The term Prerogative powers refer to powers that are unique to the sovereign. The concept of it stems from the medieval King acting as head of the kingdom, but it is by no means a medieval device. Today, most of the day-to-day work of the government is conducted using prerogative power; however, the exercise of these discretionary powers is limited to political and legal mechanisms. These controls will be explained in depth further in the essay. The history of prerogative power illustrates the struggle for power between the Crown and Parliament. Before and during the 1600s, the King exercised powers related to Parliament. For instance, lawmaking, administrating the courts, regulating trade, taxation and defence of the realm and other prerogatives. However, after the ‘Case of Proclamation,’ much of the monarch’s power was limited and Sir Coke, the judge held that “The King hath no prerogative but that which the law of the land allows him.”, which established that the Monarch could make laws only through Parliament. The problem of the absolute prerogative of power was confronted firstly by the Bill of Rights 1689, which declared illegal certain specific uses and abuses of the prerogative and secondly by the growth of responsible government and a constitutional Monarchy. Another remarkable case in the history of Royal Prerogative is BBC v John, where it was established that the claim of the crown may not extend the Royal Prerogative powers. Parliament’s sovereignty was established in 1689 and since then, prerogative powers have only continued in so far as parliament has not regulated or removed them. There is no one single, accepted definition of what Prerogative Powers are. Two of the most widely accepted definitions were those provided by A V Dicey and William Blackstone. Blackstone described it as “powers that King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects.” Dicey’s definition is somewhat broader to that of Blackstone’s and is widely accepted today. According to him, “the residue of discretionary or arbitrary authority, which at any given time Is legally left in the hands of the Crown.” In simple words, royal prerogative are the powers that are exercised without the consent of Parliament. These prerogatives include all the special rights, powers that belong to the crown and are accepted as inherent legal elements of the common law. Prerogative powers are derived from three main sources. Firstly, the Queen’s Constitutional prerogative powers. These are the discretionary powers that remain in the sovereign. These include the right to advise, encourage and appoint the Prime Minister and to assent legislation. This is followed by Crown’s legal prerogative power. These are legal, rather than constitutional, prerogatives and include a number of historical remnants such as crown’s rights to sturgeon, certain swans and whales. More significantly, the legal principle is not bound by statute. Lastly, prerogative executive powers are also concluded as a source for crown prerogative powers. These are powers which historically have resided with the sovereign but which now are exercised by government ministers acting in sovereign’s name. Royal Prerogative is limited to political and statutory control by parliament and judicial control through judicial review proceedings. Firstly, Parliament Supremacy states that any Act passed by

Parliament is the highest form of law and Parliament can abolish, amend or curtail prerogative powers. Many previous cases have showed the limitation Parliament can put on Royal Prerogative. The ability for statute law to adjust and abolish prerogative powers was set out in the High Court judgment in the case of R (Miller) v Secretary of State; “there is no superior form of law than primary legislation.” The royal prerogative power is residual, that it is what is left of the power of the Crown as a ruler with absolute power over the realm. Parliament has the authority to pass a legislation that could replace prerogative power. Another case that shows the power of Parliament in A G v De Keysers Royal Hotel Ltd, where it was held that statute law prevails over prerogative power. More importantly, the Crown cannot use prerogative powers to defeat statutory power as this was seen in Laker Airways v Department of trade. Nonetheless, where overlap between the prerogative power and statute is unclear, the courts take a different approach. In R v Home Secretary ex parte Northumbria Police, it was held that government could use prerogative power as well as the statute. The courts do however draw the line where a prerogative power is used to defeat a statutory power, such as in R v Secretary of State for the Home Department ex parte Fire Brigades Union, where it was held that the prerogative could not be used to avoid a statutory duty. These cases clarify the significance of statute in relation to crown prerogative. When the use of prerogative powers requires the expenditure of funds, Parliament can again be a limiting factor. The power to declare was is by far one of the most important powers of the crown and the government can exercise it whenever they see fit, however, without the backing of Parliament, providing the funding for troops and supplies, a war would not be possible. Statute keeps immense importance while supervising prerogative powers and will always prevail whether or not the government agrees with it. Secondly, the court keeps checks and balances on use and abuse of prerogative power through judicial review. Prior to the GCHQ case, there was a law that stated that prerogative powers were not subject to judicial review. The GCHQ case established that the exercise of the prerogative powers were subject to judicial review but there were exceptions, including matters of security. Since Human Rights Act 1988 Courts have agreed to review prerogatives especially where they have little policy content and relate to individual rights or interests, such as exclusion of members of the armed forces (on the ground of sexual orientation) in R v Ministry of Defence ex parte Smith. Additionally, in The case of R (Bancoult) v. Secretary of State, issue arose in relation to judicial review of Orders in Council. The court held that this was possible and Lord Hoffman said “I see no reason why prerogative legislation should not be subject to review on ordinary principles of legality.” Thus, the courts are responsible for supervising the powers of crown and making sure there is no abuse of it so as to maintain public confidence in the system. Thirdly, Constitutional conventions are historical practices which determine what will happen in certain circumstance. The relationship between Prerogative power and constitutional convention is highlighted in R ( Evans) v Attorney General, where it was held that certain actions are authorized by prerogative power and the convention provides the custom or rule which dictates how the power shall be exercised. these are methods of keeping checks and balances on the prerogative, there are some instances where supervision will not be as essential. This includes matters of security, questions of pure international law or treaty-making and the prerogative power of royal assent to legislation. This is a discretionary power granted to the Crown thus highlighting its value in the system.

In July 2007 the Government published a Green Paper “The Governance of Britain” which discussed reform of the Royal Prerogative. It proposed that “in general the prerogative powers should be put onto a statutory basis”. This was followed by a White Paper (with a draft Constitutional Reform Bill included) in March 2008. The White Paper contained proposals for reform of the Attorney General’s powers, for placing the 7 civil service on a statutory footing and for greater parliamentary control over deploying the armed forces abroad and ratifying treaties. Issuing passports was to be placed on a statutory footing separately by future legislation. The Constitutional Reform and Governance Act 2010 will (when it comes into force) place the civil service on a statutory footing and allow parliamentary scrutiny of treaty ratification (in the form of a resolution of the House of Commons). The exercises of the prerogatives are also subjected to the legal and political control respectively. Although there are some limitations of the political control of the prerogative powers, the effective legal control by the courts which grant the judicial review on the prerogative powers has ensured the prerogative powers would not carry out discretionally and repudiate the democracy in UK....