The Royal Prerogative Essay
The royal prerogative is a source of constitutional law; it is derived from common law powers that have been handed down from the monarchy to the executive. The significance of the prerogative in constitutional law is that it provides the executive with considerable power to act without following ‘normal’ parliamentary procedures. As Dicey explained, the prerogative is ‘every act which the executive government can lawfully do without the authority of an Act of parliament’.
In constitutional terms, it is therefore important to explore the means by which the UK constitution secures the accountability for the exercise of prerogative powers by the executives.
Historically the prerogative was exercised by the monarchy, the majority of powers are now used by ministers, and very few remained the personal preserve of the sovereign. The extent to which the judiciary and the legislature are able to regulate the exercise of prerogative powers by the executive has increased. However, there are still some who are concerned by the lack of control that can be exerted by the other constitutional bodies.
The challenges to the power of the Monarch was by the reign of James I (1603-25) the monarch was faced with an increasing effective Parliament, culminating in the temporary abolition of the monarchy in (1625). Consequently, the monarchy’s powers were eroded by both revolution and by legal challenges, which included the case of Proclamations (1611) , the monarchy could not change the law by proclamation. The law of the land, which required that the law be made by Parliament, limited the prerogative. In the case of Prohibitions Del Roy (1607) the Monarch had no right to act as a judge, and in the case of the Ship Money Case (1637), although the court declared it to be within the Monarch’s power to determine a state of emergency, requiring tax raising, the Ship Money Act 1637 was passed, making it illegal for the monarch to raise taxation. The bill of rights of (1688) can be seen as the historical origin of the supremacy of parliament and since that point, many of the prerogative powers have been abolished or superseded by the state. Prerogative powers, then can be described as the residual powers of the state that are not governed by the legislation and do not require authorisation by parliament.
These include important matters of governance; the disposition of the armed forces; regulation of the armed forces: the grant of honours; diplomatic relations and making of treaties; the appointment of the minister and the dissolution of parliament.
The queen retains the personal power to grant certain honours, to assent the Bills passed by parliament, to appoint the prime minister, and to dissolve parliament.The powers that fall within its scope are often of crucial importance to government, and it is perhaps peculiar that the limitations and controls upon the prerogative have not yet been formalised.
Modern use of prerogative powers may be defined as the legal...
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Prevent the abuse of prerogative powers exercised by ministers
Critically assess the degree to which the courts and Parliament are able to prevent the abuse of prerogative powers exercised by ministers of the Crown under the modern constitution
Constitution in the United Kingdom has a tacit mandate, realised through the Statutes , The Common Law and established Conventions through which the various organs of State are co-ordinated, an inherent part of the charter without being incorporated into the actual law. Through habitual utilisation revealing the expectations associated with these Conventions, a compliance affecting political and legal activities limits any prerogative powers, although not enforceable in law.
The doctrine that maintains a separation of powers reinforces the concept of the constitution, thereby “…avoiding the risk of too much power being accumulated in one person or institution…” . Montesquieu propounds the total separation of powers, with no single person fulfilling more than one prominent position. This simplistic solution does not adequately address the organisation of the Parliamentary offices that exist today. Currently, the British legal system is administered by a range of Government departments with the Home Office being responsible for the upkeep of the police, although the autonomous police forces, apart from the Metropolitan Police Force and the British Transport Police, are not responsible to the Home Office but to each Local Authority Police Committee
“…at the heart of British government there is a kind of constitutional black hole…”
At any one time there are a range of Ministers involved with all major issues of law, with Ministers from various government departments playing roles in legal matters through their responsibility for law reform in their particular area . Recently, with the emphasis on law and order making up successive Governments’ manifestos, one department (the Home Office) being responsible for both civil liberties and public order could lead to a detriment in one or the other depending where the majority of funding had been given.
The Home Office is just one department responsible for British laws (Elliott & Quinn, 1998, 368). The Law Officers’ Department and the Lord Chancellor’s Department also contribute to law reform. Heading the Law Officers’ Department are Government Ministers, although not Cabinet members. These Ministers are responsible for major litigation involving the Government. All cases referred by the police for prosecution must now go before the Crown Prosecution Service, run by the Director of Public Prosecutions, who is answerable to the Attorney General and Solicitor General (the Ministers who run the Law Officers’ Department - part of the Government). (Elliott & Quinn, 1998, 368) (Gregson & Livesey, 1993).
Where other countries have a single Ministerial office responsible for co-ordinating criminal offences, Britain’s legal system is administered through this traditional hierarchy of offices each responsible for their own particular area of concern and often covering branches of work directly in contravention of each other (Elliott & Quinn, 1998, 370), e.g. the Lord Chancellor’s Department is at present responsible for the Head of the Judiciary and Speaker of the House of Lords whilst also fulfilling a role as Member of the Cabinet. However, it was announced by the Government in 2003 that the position of Lord Chancellor was to be abolished.
Senior positions within the judiciary are officially made by the Queen, although in reality this transpires through the Lord Chancellor’s recommendation. The Lord Chancellor is also directly responsible for appointing the lower judiciary. The Judiciary do, however, maintain an independence from higher office. There are certain conventions attached to behaviour expected of the judiciary, with them being expected to refrain from political activities, and under Schedule 1 of the House of Commons Disqualification Act 1975 are prohibited from holding office as a Member of the House of Commons. Judges can only be discharged by the exclusive decisions of both the Houses of Commons and Lords in conjunction with approval by the Crown under Section 11(3) of the Supreme Court Act 1981.
This exclusive role of Lord Chancellor carries enormous significance, encompassing enumerable responsibilities necessitating a number of executive centres to accommodate this. In view of the fact that there are around 659 MPs, with a slightly higher number in the House of Lords complete control over the executive would be very difficult to implement. With Government Departments being so extensive, a number of Select Committees have been appointed to preside over the organisation and overtly monitor the issue of legal liability, with debate, oral and written questions forming part of the system of accountability. A memorandum in response to the Public Administration Select Committee stated “Ministerial accountability to Parliament is weakening. Select committees are, however, seeking to strengthen that accountability” (Jowell, QC, 2004). The characteristics displayed by the Parliamentary Select Committees reflect the seniority of the judiciary who oversee legislative appraisals, e.g. the obfuscate Scott enquiry into the arms-to-Iraq debacle. This illustrates an indubitable prerogative of power which can only compromise the impartiality of the judiciary. Observations about the “…direct link between the executive and legislative power” have led to the criticism of “…ministers of the Crown exercising executive power and also sitting in Parliament…” , thereby precluding the beneficence of the separation of powers. On the advice of the Prime Minister in 1967, the Crown created the Parliamentary Commissioner for Administration through the Parliamentary Commissioner Act 1967, later to become known as the Ombudsman .
The Sovereignty of Parliament, in association with acknowledged Conventions, contributes to the sanctity of the Constitution, with Statute reinforcing this safeguard. Until EU legislation was ratified Parliamentary precedence prevailed through Statute, encoded within legislation and sustained by the English legal system. This espousal of English law, and ultimately Parliament, precluded the judiciary from assuming supremacy unless the Government were culpable of illicit conduct . Occasionally the Courts have concession to decide the application of legislative power as in a case involving the extent of the Inland Revenue’s authority . Successive Governments are enfranchised through Parliamentary sovereignty to repeal Acts retrospectively from which the doctrine of implied repeal once enabled Courts to apply the latest legislation if confronted with a resultant incompatibility although this has now be superseded by Section 2 (4) ECA 1972, where compliance to all Community legislation is required. This concept of a later Parliaments not being bound by its predecessor also failed to gain Lord Denning’s support, referring, as he does, to a ‘political reality’, limitations of which also impact upon social and economic factors - especially relevant since the inception and ratification of EU legislation and its impact up the English domestic Courts’ system.
New sources of law , such as the devolved administrations realised in The Scotland Act 1998 and the Government of Wales Act 1998, and especially evident since the ECHR was ratified in October 2000, also complicate matters, although devolved legislation and all UK Ministers remain ultimately accountable to UK Parliament . Section 2(1) of the European Communities Act 1972 limits Parliament’s sovereign rights, with EU legislation being a contract between Member States under which mutual duties are accepted. Many of the Articles of the Convention are limited by various derogations which can also be applied , although EU law retains the ultimate supremacy as evidenced in Factortame and, although loss of sovereignty is limited, the House of Lords acknowledged the discrepancy. The sovereignty of Parliament was curtailed with the Courts requirement “…to override any national law found to be in conflict with any directly enforceable community law…” creating a potential for impasse with the Constitution, and rescinding Parliament’s remit to unilaterally legislate with impunity. Section 2(4) of the Convention is especially relevant in binding any implied repeal by Parliament, although there is always potential for derogations to be applied as necessary .
The Rule of Law is the third principle of the constitution which confirms the legitimacy of the Government and prevents arbitrary legislation being applied indiscriminately. As a result, freedom is assured in the absence of specific contrary legislation, a situation which applies equally to Government ministers . Griffith (1985) is highly critical of the perceived lack of regulation within Government departments, commenting that essential political restructuring is indispensable to restrain prerogative powers within any Department . As evidence of this James Callaghan has been reported to state: “...I certainly think the doctrine should apply, except in cases where I announce that it does not” , referring to the potential to dissolve Parliament should “…possibility of an ‘elective dictatorship’ ” ever emerge . Delegated legislation can, however, be subject to judicial revue with a challenge being subject to the principles of natural justice, revealed in the ‘rule against bias’ and the ‘right to a fair hearing’. This was applied with respect to a case involving property development and a local councillor and also when with respect to comments made by the Coroner to the press in respect of the Marchioness disaster. One of the remedies for a judicial review is the prerogative of Certiorari which reverts the initial problem back to its initiator. The prerogative remedy of mandamus results in a prohibition preventing an action being carried out. Other prerogative remedies are habeus corpus , injunctions and declarations , and damages.
A concept that Parliament legitimises Executive policy is naïve in evidence of its extraordinary power to approve legislation enacted by Parliament realised through its Cabinet as can be seen in CND v Prime Minister . This current Government is not immune to accusations of abuse of prerogative powers with the Courts ruling that the Labour Government acted ultra vires in the order to attack Iraq without the sanctions of Parliament or due regard for UN Resolution 1441. This is not the first instance of a ruing of ultra vires being issued in respect of the Government when it was ruled that the Government had over-stepped their jurisdiction in ordering the Civil Aviation Authority to adhere to their policies when, legitimately, their powers only sanctioned the circulation of a guidance. The potential for Parliament preventing the abuse of prerogative powers exercised by Ministers of the Crown under a modern constitution should lie within the bounds of the ruling Executive with party discipline determined through the doctrine of collective responsibility administered through the Courts. In turn, the Judiciary hold the Government accountable in response to their legislative powers being implemented through the courts’ system “…Parliament makes the laws, the judiciary interprets them” .
Conversely, there no evidence a prerogative of use is required, which encourages the potential for abuse, although prerogative powers are, however, limited by statute. Retrospective application of prerogative powers can be elucidated by the Courts under the auspices of the common law as revealed in an earlier Government’s ruling on Trade Union membership . Is there any credibility in these three areas of power maintaining suitable checks and prevent of abuse of privilege. Both the executive and the electorate are answerable to Parliament whilst the Judiciary maintain an aloof independence as custodians of the law.
The Royal Prerogative powers have been eroded with the domination of Parliament’s ascendancy creating the potential for abuse by Ministers of the Crown and the increased need for ministerial accountability. It could be assumed that Government and Ministers would be accountable through the concept of the constitution represented by the rule of law, conventions and statute, with the ultimate power in the hands of the electorate. However, the Cabinet, who formulate and apply Government policy, is appointed by the Executive’s most senior officer in the person of the Prime Minister. The doctrine of collective responsibility, applying their collective decisions, made by the Cabinet, reaches the House of Commons which constitutes one of the bicameral House, the other occupied by the House of Lords. If these powers are misused, however, those responsible can still be brought under control, illustrated when the House of Lords ruled the Home Secretary guilty of contempt of court
Lord Mustill is a strong supporter of the Courts and Parliament being able to prevent the abuse of prerogative powers being exercised by Ministers of the Crown. He was reported to state that:
“It is a feature of the peculiarly British conception of the separation of powers that Parliament, the Executive and the Courts have each their distinct and largely exclusive domain. Parliament has a largely unchallengeable right to make whatever laws it thinks right. The Executive carries on the administration of the country in accordance with the powers conferred on it by law. The Court interpret the laws and see that they are obeyed” .
The Government’s policies of internment in Northern Ireland during the 1970s flouted the basic concepts of the Rule of Law, subsequently considered an illegality as well as unethical and immoral. The Executive has sometimes appeared to interpret the law according to its purposes , or pursue certain legislation rather vociferously , revealing a potential conflict with the ethos of the Rule of Law. The introduction of the ECHR has limited the power of both the executive and the Parliament, although attempts have been made by various Home Secretaries to derogate Article 5 of the Convention in respect of asylum seekers and, more recently the anti-terrorism issue. With the EU legislation limiting the sovereignty of Parliament it remains questionable whether the importance and relevance of the Rule of Law will retain sufficient impact to maintain true separation of powers and uphold the prerogative power bestowed by the Crown, and maintained by the Courts, as a privilege by convention which does create a potential for too much power coming accumulated in one person or institution as pointed out by Montesquieu. It is understandable that the various Select Committees have been set up throughout Parliament administrations to pre-empt this situation arising, with frequent written statements published as either Letters or Memoranda from Committee Members, such as that written by Mr Browning, MPP (PASC):
“Ministerial accountability to Parliament is weakening.
Select committees are, however, seeking to strengthen
that accountability” .
One of the most valid observations Professor Jowell has made involves the misleading nature of “the personal discretionary powers which remain in the Queen’s hands” and implies that the true nature of the problem of the Courts and Parliament being able to prevent abuse of prerogative powers exercised by the Ministers of the Crown under the modern constitution lies in the “hazy nature of the British Constitution”. Professor Jowell points out a need for this to be defined due to them being “potentially of great political significance”. Can the Courts and Parliament prevent an abuse of prerogative powers exercised by Ministers of the Crown? Pollard Papworth and Hughes quote “quis custodiet ipsos custodies” in answer to this, and perhaps they are right: is there a definitive answer within the constitution of the British Democracy, or does accountability now lie with the ECHR to maintain that illusion?
The final answer can only be given by Professor Jowell, QC, ad verbatim:
“The most amazing statements in the whole paper are found in the first and second sentences of section 5 of the issues paper. The first surprise, a small one, comes in the first sentence: "Ministerial executive powers do not require, either by law or convention (emphasis added) parliamentary approval before or after they are used". The second, bigger surprise comes in the first part of the second sentence: "Parliament does not even have to be told that they have been exercised". Then comes a double bomb shell: "indeed, Ministers have said that no record is kept of their use and that it would not be practicable to do so."(Section 2.3.1).
Mr Peter Browning (MPP 05) wrote this in his Written Response Memorandum to the Paper issued by House of Commons Public Administration Select Committee (PASC) in July 2003
- Elliott, C. & Quinn, F. English Legal System, (1996) 1st Ed. Harlow: Longman.
- Griffith, J.A.G. Politics of the Judiciary, (1985) London: Fontana Press
- Montesquieu, C. The Spirit of the Laws, Cambridge: Cambridge University Press.
- Martin, J (1998): The English Legal System: Hodder & Stoughton, Oxford
- Templeman, Lord (Consultant Editor) Constitutional Law: The Machinery of Government, (1997) 1st Ed. London: Old Bailey Press. pp. 66 & 107.
- Browning, Peter (2003): Response Memorandum to PASC, House of Commons, July 2003.[Online]Available from URL: http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/355/35502.htm)
- Jowell, Professor, QC (2004): Memorandum (Reference: GBI 17) in October 2004 in response to The Public Administration Select Committee’s 3rd Report, Published on 12th February 2004: HMSO [Online] Available from URL: http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/355/35502.htm)
- URL: www.innotts.enforce
- URL: http://www.dca.gov.uk/constitution/devolution/guidance/dgn11.pdf.
- Article 6 of the ECHR only engages when a person's civil rights and obligations are in issue. Most public inquiries are investigatory or advisory only and not executive in character, so would not fall within Article 6
- Article 15 provides for derogation from the rights and freedoms in cases of ‘public emergency’
- Bill of Rights 1689
- European Communities Act 1972
- Section 2(1), European Communities Act 1972
- Section 2(4), European Communities Act 1972
- Entick v. Carrington (1765) 19 St Tr 1030; Council of Civil Service Unions v. Minister for the Civil Service  AC 374, HL
- Costa v. ENEL  CMLR 425, ECJ
- R v Inland Revenue Commissioners, ex parte Rossminster (1980)
- Ellen Street Estates v. Minister of Health  1 KB 590, CA.
- Blackburn v. Attorney-General  2 All ER 1380
- R v. Secretary of State for Transport ex parte Factortame (No. 2)  3 WLR 818
- Malone v. Metropolitan Police Commissioner  Ch 344
- R v Hendon, ex parte Chorley (1933)
- Laker Airways v Department Of Trade (1977)
- Lord Diplock put it in Duport Steel v Sirs  1 ALL ER 529 at 541
- Council for Civil Service Union v Minister for the Civil Service 
- M v Home Office  QB 270
- R. v Secretary of State for theHome Department, ex parte Fire Brigades Unions  2 AC 513. (Fire BrigadesUnions, at 567)
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