Prerogative Power

PP or RP are defined by AV Dicey as being ‘the remaining portion of the crown’s original authority and is therefore the name for the residue of discretionary power left at any moment in the hands of the crown whether such power be in fact exercise by the king himself or by his ministers’. Today there are still many PP available to ministers and the monarch and these powers are often exercise without restraint and in controversial situations.

PP are nevertheless important and they are not subject to tough enough parliamentary and judiciary scrutiny and I will support this by examining the available PP and their usage as well as the limited restrains from parliament and the judiciary on their use. History of PP Formally in the UK, executive powers are rested in the crown. However in reality this is not the case. Traditionally this was the stance in the UK. However in modern times, the most important PP are available only to the prime ministers and other cabinet ministers.

However, the monarch still have some personal prerogatives powers at their disposal but this are not mostly carried out on the advice of the prime minster. Main prerogatives powers When looking at domestic affairs the personal PP of the monarch include immunity from taxation (although since 1993 Queen Elizabeth II) has voluntarily paid taxes on her private income). Immunity from prosecution, appointment of honours, appointment of PM, dismissal of government, dissolution of parliament, and granting the royal assent.

However some powers are merely formalities and the monarch have to follow convention in the exercise while its other powers are exercise on the advice of the PM. As Walter Beigehout put it the monarch still have the rights to be consulted, the right to encourage and the right to won in terms of the powers available to the monarch towards the government. The PP of the ministerial executives include the power of pardon the crown not being bound by statutes, unless the statute implicitly said otherwise, the crown being the preferred creditor, the power to issue passport and to regulate the civil servants.

Looking at foreign affairs PP include the powers to conclude treaties and to declare and conduct war. New PP cannot be created today. However, an existing power can be applied to a new circumstance. The vast array and scope of these powers and the fact that these powers are often exercise with limited parliamentary and judiciary scrutiny confirmed that PP are still an important part of the UK constitution. Parliamentary scrutiny of PP Currently parliamentary scrutiny of exercise of PP is weak.

Some have described the power to declare and conduct war as the most significant of the PPs. Yet these powers remain exclusively in the hands of the PM and the cabinet as the monarch is the commander in chief of the armed forces; although since the Bill of Rights 1689 the consent of Parliament is required for the main tenants of the armed forces during times of peace. In theory there are no limitations on the executives in deploying the armed forces.

However in practice, parliament would be consulted as occurred with the invasion of Iraq in 2003 yet many MPs including William Hague expressed that he felt the vote have been given as a kind of generosity by the government. Thus in theory there could be no scrutiny in parliament in the event of going to war even though it could involves thousands in the armed forces and be paid for using tax payers money. The signing of foreign treaties is another PP available to the executives.

Parliament is required to rectify, signs treaties however only treaties which changed UK laws have to be debated by parliament. This gives parliament no ability to carry out scrutiny when it comes to treaties which do not amend UK laws even though there may be important treaties with other countries or supranational organisations. PP allows ministers to manage the civil service and gives them the availability to create primary legislation under the prerogatives by an order in council.

No statute is needed to give this legislation authority although an Act in parliament can override it as confirmed in the GCHQ case. Legislation made by ministers in this way although rarely done does not allow parliament to scrutinise what has been made into law and it allows ministers to manage the civil service and gives them the ability to create primary legislation under the prerogative by an order in council. No statute is needed to give this legislation authority although an act of parliament can override it as confirmed in the GCHQ case.

Legislation made by ministers in this way although rarely done does not allow parliament to scrutinise what has been made into law and it allow ministers to circumvent the parliament thus making the executives more powerful than the legislature. The power to cede British territory and to alter and declare the limits of British territorial waters is another set of PP available to the executives without the scrutiny of the parliament although since the Ireland of Rockall Act 1972,it is unlikely that the crown would cede British territory without the approval of Parliament the option is still available.

Furthermore even though most PP concerns with immigration has now been exercise under the Immigration Act 1971, the issue of revocation of passports is still based on the prerogatives. Hence parliament plays no part in the scrutiny of who is restrained from leaving the UK and who is recalled back from abroad during times of peace. Even though this interferes with the individual autonomy and the justification given for doing this may not be sound.

The monarch have retained the PP of honours and appointment which allows them to organise appointments such as for ministers, judges, the civil service and other important public appointments. The powers of giving powers such as peerages and other prerogatives honours such as knighthood is also at the disposal of the monarch. This appointments and honours are given in the advice of the PM and although the HOL appointment commission advices the PM on peerages there is no opportunity for parliamentary scrutiny in the exercise of this PP.

this means that in some cases the Pm can virtually appoint who he sees fit and parliament have no chance to scrutinise the people who have been appointed in important public office positions which means that people are put into positions of great power without a full scrutiny by the democratically elected representatives of the people they are about to served. Furthermore having this PP may lead to corruption as what was uncovered in Cash for Honours Scandal in 2006 and 2007 where it emerged that political parties have been offering peerages in exchange for donations and loans.

It is likely that situations such as this would not have occurred had parliamentary scrutiny be allowed. It seems farcical to say that in a democracy it is acceptable that only a PM and his ministers can decide some matters of great importance at the expense of a full debate by the elected representatives of the electorate. It is sufficient to say there is a weak parliamentary scrutiny of the exercise of PP and this seems unfair and unjust as it appears to be an almost legal loop hole which allow a select group of people to circumvent parliament and avoid a democratic debate on what could be controversial issues.

Judicial scrutiny of PP Judicial scrutiny of the usage of PP is relatively frequent compared to the opportunities for parliamentary sovereignty however the majority of the time the courts seems to stick to the condition and powers outline in the UK constitution and agree with the crown on its usage of PP hence there tends to be weak scrutiny in the system. Firstly looking at the extent of PP new one cannot be created.

But existing ones can be applied to new cases in the case of R v Secretary of States for Home Affairs Exparte Northumbria Police Authority it was held that the COA that the Home Sec retains the power of the ancient prerogative to keep the peace even in times of non-emergency. Judicial scrutiny was weak ‘cos the court was reluctant to get involved in the controversial subject of police powers. A statute is a highest form of law and it can abolish a higher form of law.

Judicial scrutiny on this matter occurred early in the 20th century in the case of AG v Dikeyses Royal Hotel whereby the Lord Dunedin said that “If the whole ground of something which could be done by the prerogatives is covered by the statute it’s the statute that rules”. This decision confirmed the previous statement I made and showed that using greater powers of scrutiny can limit the power of the government. However more recent times the judiciary have been reluctant to heavily scrutinise the PP of the crown and the HOL especially tends to rule in favour of the government.

The case of R (Bancoult) v Secretary of States for Foreign Affairs is a highly controversial one. The background of this case was in 2004 orders of council was used to overturn a decision which stated that the exile of the Indigenous People who live in a British Indian Ocean Territory was unlawful only for the high court and subsequently the COA to rule that the orders in council were unlawful. The case was then appealed to the HOL who rules that actions of the ministers were legal as they were of PP.

the numerous different judgements and appeals in this case demonstrates that the courts do have some powers of judicial scrutiny however the laws are less enthusiastic about performing a detailed analysis and would rather follow the existing constitution and the PP set out in it. The landmark decision in deciding the manner of exercise of PP arose from GCHQ in which the laws rule that the exercise of prerogatives powers were not enough to make the minister immune from judicial review nor did it allowed them to depart from their duty to act fairly.

The decision in this case shows that greater usage and power of judicial scrutiny that does make sure that decision taken using PP are still fair and do not allowed the executive to wheel too much power in an uncontrolled manner. In this particular case however, national securities concerns outweigh fairness. Interestingly, the decision of this case affirms Lord Denning’s belief which he had outline in Leaker Airways v Dept of Trades where he had argued that if the PP exercise had been done so improperly or mistakenly so as to impinge unjustly in the legitimate rights or interest of subject then the courts must intervene.

Judicial scrutiny of PP doesn’t seem to be as weak as parliamentary scrutiny but this does not mean that the level of scrutiny is thorough. The higher courts especially seemed reluctant to challenge the traditional view of PP as laid out in the UK constitution. This again allows for a select group of people to have a lot of power which they can exercise unchecked by the judiciary which is impartial, neutral and makes sure that the law is fair.

Although in recent times judicial scrutiny have improved due to the implementation of the HRA 1995 which have allowed the courts to decide whether orders in council are compatible with convention rights. However this still means that the exercise of PP which do not concerns HR have minimal scrutiny and courts which want to stick closely to the constitution in the exercise of PP will often bend the orders in council to make them appear compatible with convention rights. Furthermore judicial scrutiny is weak even with HR issues when national securities were cited by the crown as looked as above.

Reforms Reforms in the way PP exercise and changes in the powers available to parliament and the judiciary can strengthen the scrutiny of PP. firstly I would advocate that Parliament through committees should have a right to scrutinise any actions by ministers and the prime ministers exercised under the prerogatives power and if need be called upon the issue to be debated by the full house. The ideal would be that PP are removed and the powers are dealt with through statute instead but this is unlikely to happened.

Secondly even though HR legislation have provided the J more reasons to scrutinise, their power of scrutiny should be strengthen through changing the judiciary to make it more pragmatic. Hence making the judiciary more able to challenge the executive and tackle controversial political issues rather than shy away from making these decisions. In practice however giving more power to parliament to scrutinise may not actually affect the way PP are exercise due to MPs following party lines and the government having a majority- this is described by Lord Hai_ as an elective dictatorship.

Sarah from Law Aspect

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