How Effective Is The Royal Prerogative?
An important site in the British Constitution, although far more important in the past than today, is the royal prerogative. The United Kingdom has a constitutional monarchy, not an absolute monarchy. This means that the monarchy is apolitical and impartial. The defining characteristic of the prerogative is that its exercise does not require the approval of Parliament.
A V Dicey defines the Royal prerogative as ‘the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’. William Blackstone however describes the prerogative more tightly, as those powers that ‘the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects’.
Barnett describes the prerogative today as ‘this ill defined reservoir of power’. …show more content…
After the glorious revolution and after the enactment of the Bill of Rights 1689, Monarch has become a Constitutional Monarch i.e. the Monarch has limited prerogatives bestowed on her.
This is in line with A V Dicey's first postulate that no one should be punished save where he has committed a distinct breach of the law, and then only by the ordinary courts and in the manner prescribed by law, it necessarily warrants the controls and limits by separating the powers of the organs of the state with check and balance mechanism, though most prerogatives today are performed by the Executive.
The royal prerogative concerns ‘those inherent legal attributes which are unique to the Crown’ (De Smith Constitutional and Administrative Law (1998)). Whilst some of these do still remain vested in the Monarch in person, by convention most (in volume and significance) are now exercisable only by Ministers of the Crown. It is true that, by convention again, the Queen must be consulted and, as Bagehot put it, she has ‘the right to be consulted, the right to encourage, the right to warn’ (The Law of the Constitution (1867)), but in reality the royal prerogative now amounts to powers of the Her Majesty’s elected government.
Some key areas of British system of government are still carried out by means of the Royal Prerogative. However the usage of the Royal Prerogative has been diminishing.
The prerogative gives the prime minister and his government almost unchecked powers not only to make war abroad, but also to deploy troops at home (to maintain the peace), to make and ratify treaties, to conduct foreign policy, to negotiate for the United Kingdom in the European Union and on other multilateral bodies, to share in NATO's decision-making, to represent Britain at the United Nations, to organise and re-organise the civil service, to grant and revoke passports, to dissolve Parliament, to dispense peerages and honours, to appoint senior judges and to stop prosecutions.
These rights are medieval in origin and are formally used by ministers (and officials) on the Queen's behalf. In effect, they give ministers wide-ranging executive powers that may be exercised without parliamentary approval or scrutiny. Parliament does not even have the right to know what these powers are. Ministers shrug off parliamentary questions about them by saying that it would be impossible to list them, that records are not kept of their use and that it would not be practicable to do so.
A classic example of abuse of power in the name of Royal Prerogative is when Tony Blair took the country to war.
The scope of the royal prerogative power is notoriously difficult to determine as there are many prerogative powers, for which there is no recent judicial authority and sometimes no judicial authority at all. It is clear that the existence and extent of the power is a matter of common law, making the courts the final arbiter of whether or not a particular type of prerogative power exists.
The courts could determine the existence and extent of a prerogative power, they could not question or review the manner in which a prerogative power had been exercised. According to AG v De Keyserʹs Royal Hotel (1920), where statute clashes with royal prerogative, statute will prevail over the prerogative. According to Lord Denning, "..it seems to me that this new wide statutory power swallowed up the old prerogative power.” The reasons for the courts reticence on questions pertaining to the prerogative relate to the prerogative's connection with the idea of ‘the Crown’, a nebulous but structurally central concept within United Kingdom public law that tends to act in the words of the constitutional historian F. W. Maitland, as ‘a convenient cover for ignorance’, which ‘saves us from asking difficult questions’.
A V Dicey's third postulate states that the principles of constitutional law are established by the courts in the process of determining the rights of those parties who come before them, as are principles of common law generally; courts and judges are better protectors of civil liberties.
Lord Denning pointed this out in the Laker case in the Court of Appeal in 1977, ‘seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power that is vested in the executive’.
A year later Lord Denning was the dissenting judge in the Court of Appeal in Gouriet v AG 1978 when the majority refused to review a decision of the Attorney General not to commence relator proceedings (a prerogative power) to protect the public interest and challenge possibly illegal strike action by the Post Office Workers Union. The Lords upheld the Court of Appeal.
The monarch was no longer involved in day to day government and there was no meaningful distinction between a government action based on statutory or prerogative power. As such, reluctancy to question the exercise of the monarch’s prerogative powers and this form of judicial deference was an anachronism.
The turning point came in 1985 when in the GCHQ case the Lords established that there could be judicial review of a prerogative power. The case concerned the unilateral decision by Margaret Thatcher, who as prime minister was also the minister for the civil service, to deny trade union membership to Unions at GCHQ by prerogative order. The Unions failed on a separate point because their work related to national security and that aspect was non justifiable. Non justifiability based on national security would have been a bar whether the origin of the power in question was statute or the prerogative.
Since the GCHQ decision, the courts have been increasingly willing to challenge the exercise of prerogative powers especially where they have little policy content and relate to individual rights or interests.
A variation on the relationship between statute and prerogative was raised in the House of Lords in R v Secretary of State for the Nome Department ex parte Fire Brigades Union (1995). The background to this case was the Criminal Justice Act 1988 had been passed to replace the existing non-statutory criminal injuries compensation scheme for the payment of compensation to the victims of violent crimes. Lord Browne-Wilkinson concluded that since the Home Secretary was in practice seeking to use a prerogative power to repeal provisions in an Act of Parliament, his actions were unlawful and they amounted to an abuse of prerogative power.
The role of the courts in determining the existence and extent of the prerogative from time to time was a significant control on the prerogative. In particular, the control was strengthened by the common law doctrine that courts cannot create new prerogatives; as Lord Diplock put it, ‘it is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative.’
This is shown in the case of R v Secretary of State of the Home Department ex parte Northumbria Police Authority (1988). As Barnett writes ‘The issue involved in this case is the relationship between statute and the prerogative. The Police Act 1964 set out the respective powers of the Home Secretary, the Police Authorities and the Chief Constables of police with regard to, inter alia, the supply of equipment to police forces’. Purchas LJ stated that ‘..the prerogatives powers to take all reasonable steps to preserve the Queen’s peace remains unaffected by the Act and these include the supply of equipment to police forces which is reasonably required for the more efficient discharge of their duties’. There was thus in this case no real review of the exercise of the prerogative.
A more thorough review took place in v Secretary of State for the Home Department ex parte Bentley (1994). Ms Bentley applied for a judicial review of the Home Secretary's refusal to grant a posthumous pardon to her brother, hanged in 1953. The court held that the formulation of policy for the grant of a free pardon was not justifiable but a failure to recognise that the prerogative of mercy was capable of being exercised in many different circumstances and over a wide range was. Such a failure was reviewable.
Thus it is clear that the way is open for further inroads to be made into the immunity of the crown from the review. However, it is also clear that each case will be decided on its merits and there are areas which are still beyond judicial expertise. This is evident from the decision in R v Ministry of Defence ex parte Smith (1996).
Four service personnel discharged from service under the MOD’s policy prohibiting homosexuals from serving in the armed forces sought judicial review of that policy for irrationality. Sir Thomas Bingham MR adopted the following approach in this issue ‘The more substantial the interference with human rights, the more the court [would] require by way of justification before it is satisfied that the decision is reasonable’. The ECHR was (merely) the background to the irrationality allegation. The EC Equal Treatment Directive applied only to gender (not sexual orientation) discrimination. The judicial review was rejected.
Thus, although the prerogative may be reviewable on the same grounds as any other discretionary power, the grounds can be applied only when judicial experience is competent to judge the lawfulness of the exercise of the power.
Many were of the view that the decision in GCHQ may have had little practical impact. However, the case of R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett (1989), prior to Bentley and Smith, where the court did decide that the exercise of the prerogative was ultra vires.
It was decided for the first time that although a decision by the Secretary of State to refuse to issue a passport involve the exercise of prerogative power, the High Court had jurisdiction to review such decision and to inquire whether a passport had been wrongly refused.
Though important for its ‘modernising’ effects, the GCHQ case was complicated in two significant respects. First, the Law Lords did not rule, specifically, on the question of whether the prerogative itself as distinct from secondary powers derived from exercises of the prerogative was subject to judicial review under normal principles. Second, in deciding that the claimants’ legitimate expectation to be consulted, prior to a decision of this sort being taken, was overridden by the requirements of national security, the court set a pattern that has been followed in most (if not all) subsequent cases on the prerogative. Indeed, the court in GCHQ went out of its way to identify areas of prerogative lawmaking activity that were, in all likelihood, not justifiable.
The prerogative might now, in principle, be classified as a normal substatutory source of law for the purposes of judicial review; however, in practice, the courts tend still to approach the prerogative with a caution bordering on outright deference.
A number of issues need to be considered before jumping to wholehearted agreement with the sentiment. Any state needs reserve emergency powers which are entrusted to the executives. In relation to state security and international relations, whether diplomatic, economic or military, there cannot be full and frank disclosure and discussion of different options before decisions are taken. The well-being of the state would be damaged by too much openness.
The second issue is that of accountability and control. While prima facie prerogative powers are undemocratic and threaten the rule of law, if they are subjected to adequate scrutiny and control whether by Parliament or the judiciary, they may be regarded as compatible with the welfare of the state and justifiable.
In an uncodified constitution, it is also questionable how such powers could be brought fully within the legal democratic framework without upsetting the balance of power between the three principal institutions; the Parliament, the executive and the judiciary.
However, republicans feel that a republic is the next logical step of a historical process of gradual democratic reform. They assert that the British people will excel within a non-hereditary democratic and open system for selecting the head of the executive branch of government as well as the head of state.
Monarchy denies the people a basic right as it should be a fundamental right of the people of any nation to elect their head of state and for every citizen to be eligible to hold that office, and that such a head of state is more accountable to the people.
Royal Prerogative powers can be used to circumvent normal democratic process with no accountability, devaluing a parliamentary system.
Due to the history of Great Britain, it is law that Roman Catholics may not inherit the Crown. It is argued by Republicans that having an Anglican head of state is unrepresentative of a nation where only 4% of adults are practicing Anglicans.
Monarchs are not impartial but harbour their own opinions, motives and wish to protect their interests. While monarchists tend to feel that an impartial advantage is gained by various aspects of the civil service reporting to the Crown, republicans see a lack of important democratic accountability and transparency for such institutions.
The monarchy is expensive; the total cost to taxpayers, including hidden elements (eg, the Royal Protection security bill), of the monarchy are over £100 million per
annum. The prerogative powers held by ministers was addressed in the Governance of Britain Green Paper in July 2007, setting out plans for wide-reaching constitutional reforms. It stated that, ‘The flow of power from the people to government should be balanced by the ability of Parliament to hold government to account. However, then the executive relies on the powers of the royal prerogative … it is difficult for Parliament to scrutinise and challenge government’s actions. If voters do not believe that government wields power appropriately or that it is properly accountable then public confidence in the accountability of decision-making risks being lost.’
Former Labour Tony Benn campaigned unsuccessfully for the abolition of the Royal Prerogative in the 1990s. Later governments argued that such is the breadth of topics covered by the Royal Prerogative that requiring parliamentary approval in each instance where the prerogative is currently used would overwhelm parliamentary time and slow the enactment of legislation.
The Government has concluded that it is unnecessary, and would be inappropriate, to propose further major reform at present. Without ruling out further changes aimed at increasing Parliamentary oversight of the prerogative powers exercised by Ministers, the Government believes that any further reforms in this area should be considered on a case-by-case basis, in the light of changing circumstances.
It can be seen that the royal prerogative gives the government of the day great power. This power is subject only to limited accountability, not amounting to control. However, change is now a distinct possibility, despite the temptation for those in power jealousy to guard that power.
A V Dicey defines the Royal prerogative as ‘the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’. William Blackstone however describes the prerogative more tightly, as those powers that ‘the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects’.
Barnett describes the prerogative today as ‘this ill defined reservoir of power’. …show more content…
After the glorious revolution and after the enactment of the Bill of Rights 1689, Monarch has become a Constitutional Monarch i.e. the Monarch has limited prerogatives bestowed on her.
This is in line with A V Dicey's first postulate that no one should be punished save where he has committed a distinct breach of the law, and then only by the ordinary courts and in the manner prescribed by law, it necessarily warrants the controls and limits by separating the powers of the organs of the state with check and balance mechanism, though most prerogatives today are performed by the Executive.
The royal prerogative concerns ‘those inherent legal attributes which are unique to the Crown’ (De Smith Constitutional and Administrative Law (1998)). Whilst some of these do still remain vested in the Monarch in person, by convention most (in volume and significance) are now exercisable only by Ministers of the Crown. It is true that, by convention again, the Queen must be consulted and, as Bagehot put it, she has ‘the right to be consulted, the right to encourage, the right to warn’ (The Law of the Constitution (1867)), but in reality the royal prerogative now amounts to powers of the Her Majesty’s elected government.
Some key areas of British system of government are still carried out by means of the Royal Prerogative. However the usage of the Royal Prerogative has been diminishing.
The prerogative gives the prime minister and his government almost unchecked powers not only to make war abroad, but also to deploy troops at home (to maintain the peace), to make and ratify treaties, to conduct foreign policy, to negotiate for the United Kingdom in the European Union and on other multilateral bodies, to share in NATO's decision-making, to represent Britain at the United Nations, to organise and re-organise the civil service, to grant and revoke passports, to dissolve Parliament, to dispense peerages and honours, to appoint senior judges and to stop prosecutions.
These rights are medieval in origin and are formally used by ministers (and officials) on the Queen's behalf. In effect, they give ministers wide-ranging executive powers that may be exercised without parliamentary approval or scrutiny. Parliament does not even have the right to know what these powers are. Ministers shrug off parliamentary questions about them by saying that it would be impossible to list them, that records are not kept of their use and that it would not be practicable to do so.
A classic example of abuse of power in the name of Royal Prerogative is when Tony Blair took the country to war.
The scope of the royal prerogative power is notoriously difficult to determine as there are many prerogative powers, for which there is no recent judicial authority and sometimes no judicial authority at all. It is clear that the existence and extent of the power is a matter of common law, making the courts the final arbiter of whether or not a particular type of prerogative power exists.
The courts could determine the existence and extent of a prerogative power, they could not question or review the manner in which a prerogative power had been exercised. According to AG v De Keyserʹs Royal Hotel (1920), where statute clashes with royal prerogative, statute will prevail over the prerogative. According to Lord Denning, "..it seems to me that this new wide statutory power swallowed up the old prerogative power.” The reasons for the courts reticence on questions pertaining to the prerogative relate to the prerogative's connection with the idea of ‘the Crown’, a nebulous but structurally central concept within United Kingdom public law that tends to act in the words of the constitutional historian F. W. Maitland, as ‘a convenient cover for ignorance’, which ‘saves us from asking difficult questions’.
A V Dicey's third postulate states that the principles of constitutional law are established by the courts in the process of determining the rights of those parties who come before them, as are principles of common law generally; courts and judges are better protectors of civil liberties.
Lord Denning pointed this out in the Laker case in the Court of Appeal in 1977, ‘seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power that is vested in the executive’.
A year later Lord Denning was the dissenting judge in the Court of Appeal in Gouriet v AG 1978 when the majority refused to review a decision of the Attorney General not to commence relator proceedings (a prerogative power) to protect the public interest and challenge possibly illegal strike action by the Post Office Workers Union. The Lords upheld the Court of Appeal.
The monarch was no longer involved in day to day government and there was no meaningful distinction between a government action based on statutory or prerogative power. As such, reluctancy to question the exercise of the monarch’s prerogative powers and this form of judicial deference was an anachronism.
The turning point came in 1985 when in the GCHQ case the Lords established that there could be judicial review of a prerogative power. The case concerned the unilateral decision by Margaret Thatcher, who as prime minister was also the minister for the civil service, to deny trade union membership to Unions at GCHQ by prerogative order. The Unions failed on a separate point because their work related to national security and that aspect was non justifiable. Non justifiability based on national security would have been a bar whether the origin of the power in question was statute or the prerogative.
Since the GCHQ decision, the courts have been increasingly willing to challenge the exercise of prerogative powers especially where they have little policy content and relate to individual rights or interests.
A variation on the relationship between statute and prerogative was raised in the House of Lords in R v Secretary of State for the Nome Department ex parte Fire Brigades Union (1995). The background to this case was the Criminal Justice Act 1988 had been passed to replace the existing non-statutory criminal injuries compensation scheme for the payment of compensation to the victims of violent crimes. Lord Browne-Wilkinson concluded that since the Home Secretary was in practice seeking to use a prerogative power to repeal provisions in an Act of Parliament, his actions were unlawful and they amounted to an abuse of prerogative power.
The role of the courts in determining the existence and extent of the prerogative from time to time was a significant control on the prerogative. In particular, the control was strengthened by the common law doctrine that courts cannot create new prerogatives; as Lord Diplock put it, ‘it is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative.’
This is shown in the case of R v Secretary of State of the Home Department ex parte Northumbria Police Authority (1988). As Barnett writes ‘The issue involved in this case is the relationship between statute and the prerogative. The Police Act 1964 set out the respective powers of the Home Secretary, the Police Authorities and the Chief Constables of police with regard to, inter alia, the supply of equipment to police forces’. Purchas LJ stated that ‘..the prerogatives powers to take all reasonable steps to preserve the Queen’s peace remains unaffected by the Act and these include the supply of equipment to police forces which is reasonably required for the more efficient discharge of their duties’. There was thus in this case no real review of the exercise of the prerogative.
A more thorough review took place in v Secretary of State for the Home Department ex parte Bentley (1994). Ms Bentley applied for a judicial review of the Home Secretary's refusal to grant a posthumous pardon to her brother, hanged in 1953. The court held that the formulation of policy for the grant of a free pardon was not justifiable but a failure to recognise that the prerogative of mercy was capable of being exercised in many different circumstances and over a wide range was. Such a failure was reviewable.
Thus it is clear that the way is open for further inroads to be made into the immunity of the crown from the review. However, it is also clear that each case will be decided on its merits and there are areas which are still beyond judicial expertise. This is evident from the decision in R v Ministry of Defence ex parte Smith (1996).
Four service personnel discharged from service under the MOD’s policy prohibiting homosexuals from serving in the armed forces sought judicial review of that policy for irrationality. Sir Thomas Bingham MR adopted the following approach in this issue ‘The more substantial the interference with human rights, the more the court [would] require by way of justification before it is satisfied that the decision is reasonable’. The ECHR was (merely) the background to the irrationality allegation. The EC Equal Treatment Directive applied only to gender (not sexual orientation) discrimination. The judicial review was rejected.
Thus, although the prerogative may be reviewable on the same grounds as any other discretionary power, the grounds can be applied only when judicial experience is competent to judge the lawfulness of the exercise of the power.
Many were of the view that the decision in GCHQ may have had little practical impact. However, the case of R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett (1989), prior to Bentley and Smith, where the court did decide that the exercise of the prerogative was ultra vires.
It was decided for the first time that although a decision by the Secretary of State to refuse to issue a passport involve the exercise of prerogative power, the High Court had jurisdiction to review such decision and to inquire whether a passport had been wrongly refused.
Though important for its ‘modernising’ effects, the GCHQ case was complicated in two significant respects. First, the Law Lords did not rule, specifically, on the question of whether the prerogative itself as distinct from secondary powers derived from exercises of the prerogative was subject to judicial review under normal principles. Second, in deciding that the claimants’ legitimate expectation to be consulted, prior to a decision of this sort being taken, was overridden by the requirements of national security, the court set a pattern that has been followed in most (if not all) subsequent cases on the prerogative. Indeed, the court in GCHQ went out of its way to identify areas of prerogative lawmaking activity that were, in all likelihood, not justifiable.
The prerogative might now, in principle, be classified as a normal substatutory source of law for the purposes of judicial review; however, in practice, the courts tend still to approach the prerogative with a caution bordering on outright deference.
A number of issues need to be considered before jumping to wholehearted agreement with the sentiment. Any state needs reserve emergency powers which are entrusted to the executives. In relation to state security and international relations, whether diplomatic, economic or military, there cannot be full and frank disclosure and discussion of different options before decisions are taken. The well-being of the state would be damaged by too much openness.
The second issue is that of accountability and control. While prima facie prerogative powers are undemocratic and threaten the rule of law, if they are subjected to adequate scrutiny and control whether by Parliament or the judiciary, they may be regarded as compatible with the welfare of the state and justifiable.
In an uncodified constitution, it is also questionable how such powers could be brought fully within the legal democratic framework without upsetting the balance of power between the three principal institutions; the Parliament, the executive and the judiciary.
However, republicans feel that a republic is the next logical step of a historical process of gradual democratic reform. They assert that the British people will excel within a non-hereditary democratic and open system for selecting the head of the executive branch of government as well as the head of state.
Monarchy denies the people a basic right as it should be a fundamental right of the people of any nation to elect their head of state and for every citizen to be eligible to hold that office, and that such a head of state is more accountable to the people.
Royal Prerogative powers can be used to circumvent normal democratic process with no accountability, devaluing a parliamentary system.
Due to the history of Great Britain, it is law that Roman Catholics may not inherit the Crown. It is argued by Republicans that having an Anglican head of state is unrepresentative of a nation where only 4% of adults are practicing Anglicans.
Monarchs are not impartial but harbour their own opinions, motives and wish to protect their interests. While monarchists tend to feel that an impartial advantage is gained by various aspects of the civil service reporting to the Crown, republicans see a lack of important democratic accountability and transparency for such institutions.
The monarchy is expensive; the total cost to taxpayers, including hidden elements (eg, the Royal Protection security bill), of the monarchy are over £100 million per
annum. The prerogative powers held by ministers was addressed in the Governance of Britain Green Paper in July 2007, setting out plans for wide-reaching constitutional reforms. It stated that, ‘The flow of power from the people to government should be balanced by the ability of Parliament to hold government to account. However, then the executive relies on the powers of the royal prerogative … it is difficult for Parliament to scrutinise and challenge government’s actions. If voters do not believe that government wields power appropriately or that it is properly accountable then public confidence in the accountability of decision-making risks being lost.’
Former Labour Tony Benn campaigned unsuccessfully for the abolition of the Royal Prerogative in the 1990s. Later governments argued that such is the breadth of topics covered by the Royal Prerogative that requiring parliamentary approval in each instance where the prerogative is currently used would overwhelm parliamentary time and slow the enactment of legislation.
The Government has concluded that it is unnecessary, and would be inappropriate, to propose further major reform at present. Without ruling out further changes aimed at increasing Parliamentary oversight of the prerogative powers exercised by Ministers, the Government believes that any further reforms in this area should be considered on a case-by-case basis, in the light of changing circumstances.
It can be seen that the royal prerogative gives the government of the day great power. This power is subject only to limited accountability, not amounting to control. However, change is now a distinct possibility, despite the temptation for those in power jealousy to guard that power.