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Origins of Prerogative Powers

Question:

Discuss the Origins of Prerogative Powers, the Role of the Courts and Parliament in Reconciling the Differences and the Developments Surrounding National Security.

British constitution is unwritten and tends to derive power from various sources including established conventions. One of the significant sources in this context are the prerogative powers.  While their origin is quite old and stems from past era but over the time, the underlying nature has undergone changes in the manner that these tend to be exercised. The key concern of the given essay is to carry out a review of the prerogative powers that exist today and how the judicial and parliamentary constraints tends to keep these in check to ensure national security[1]. In order to achieve the same, the historical perspective of prerogative powers would be presented coupled with their present status and role in the society.  Besides, the efficiency of the various mechanisms in place by the legislature and judiciary would also be highlighted while making a case for greater regulation and reform in the usage of these powers.  This would be justified on account of national security.

The origins of the prerogative powers or prerogative powers in the UK can be traced from an era when the underlying monarch tended to act in a dual capacity of head of state and feudal lord. Thus, the king possessed the requisite powers that on one hand were require so maintain the welfare of people but on the other were required for protection of state from the state enemies. With regards to a formal definition of the concept, a single definition is not agreed to and hence there are two definitions that are quite prevalent i.e. which have been given by to scholars namely William Blackstone and A V Dicey. The definition of prerogative powers given by Blackstone tends to focus on only the exclusive powers that are possessed by him only and not by any subject. This definition was endorsed in the famous De Keyser's Royal Hotel[2] case.

However, there are more takers for the other definition offered by A V Dicey which tends to define these powers as the set of remaining discretionary power left which the Crown holds at any particular time and which may be directly or indirectly exercised. This definition given by Dicey is broader in comparison with that given by Blackstone and therefore is able to take into consideration the key developments in this regard carried out in the past that have brought about a fundamental shift in the manner of exercise of these powers.  Empirical evidence on the subject clearly indicates that usage of prerogative powers was done by exclusively by the Monarch.  But with the passage of time, the difference between Monarch acting in the capacity of state head and that in his personal capacity has become quite prominent. As a result, with the growing complexity of the state issues, the prerogative powers have been passed on from the Monarch and instead have been exercised by the advisers on behalf of the Monarch[3]. In the modern form of government that exists today in the UK, these are the ministers of the government in power[4].

Prerogative Powers in the UK Constitution Today

With respect to the domestic affairs, the prerogative powers in Monarch’s personal capacity include extension of taxation immunity. Prosecution immunity, Prime Minister and honours appointment, causing the dissolution and dismissal of the government besides giving the ascent to various laws and bills.  On the face of it, the above powers may seem to be handful but it is essential to realise that a host of the above stated powers are essentially formalities where convention needs to be observed by the underlying Monarch. Further, in the exercise of the other powers also, the Monarch is expected to act on the Prime Minister’s advice and thus cannot act in personal capacity. However, despite the above, the Monarch is to be consulted by the government and also possesses the power the either warn or provide encouragement to the policies introduced by the government[5].

The various ministers who act on behalf of the Monarch and form the executive also have prerogative powers which include pardoning power, preferred creditor status for the Crown, issuing passports, regulation of civil services and excluding the Crown from the applicability of any particular statute. The powers extended In the domain of foreign affairs would comprise of treaty making power and the decision of declaring war on a given nation.  It is noteworthy that any new prerogative power cannot be created at the present but the powers already existing may be applied to a particular situation that may be new[6]. The importance of these prerogative powers is apparent from the wide scope highlighted above which apparently makes a strong case for the regulation of the same through appropriate judicial and parliamentary scrutiny in order to upheld the national security interests.

With regards to the usage of prerogative powers, parliamentary scrutiny does exist but at the moment it is weak which has been outlined through the relevant discussion of the applicable mechanisms. One of the most significant prerogative powers is the authority to go to war which remains almost exclusively with the Prime Minister and exercised along with cabinet level consultations as the Monarch is the supreme commander for the armed forces. This is despite the fact that the a parliamentary consent is required to maintain the armed forces at peace time in accordance with the Bill of Rights 1689[7]. Thus, theoretically, the power of the executive to manoeuvre the armed forces essentially remains unfettered. In the past when in 2003, invasion of Iraq was carried out, the executive did sought out for a parliamentary vote but it was subject to the displeasure of a host of MPs who considered that it was done as an generous act by the government of the day. Therefore, theoretically, the Parliament cannot intervene in any of the future wars that the executive may decide to indulge in  even though these would involve significant allocation of resources from exchequer and manpower and could have significant impact on the nation. 

Yet another power that is crucial to the national interest is the prerogative power dealing with execution of treaties with foreign nations.  While the ratification of treaties signed by the executive is requisite in the Parliament but the purview is limited to only those treaties which tend to alter the law in the UK. As a result, for treaties which do not seek to amend the laws based in UK, the parliament has  no powers of vetting and being consulted[8].  As a result, a host of treaties with other nations and supra-national organisations can be enacted without parliamentary intervention which could have severe implications especially in cases where UK may decide to become an ally of a nation at war[9].

Efficiency of Judicial and Parliamentary Regulation


Another critical prerogative power available with the ministers is the management of civil services which allows them the control over primary legislation enacted under an Order-in-Council. To put these statutes into practice, the nod of the legislature is not required even though later a parliamentary act could potentially override the same as has been highlighted in the Council of Civil Service Unions v. Minister for the Civil Service case[10]. Thus, any legislation enacted by the executive in this manner provides effective power to bypass the legislature and effectively makes them superior to the legislature.

To declare the British territorial limits along with ceding any territory is also a prerogative power that the executive can exercise without parliamentary scrutiny.  It is highly unlikely that ever since the passing of the Island of Rockall Act 1972, that there would be any giving away of British territory without taking Parliamentary approval but the option in this regard still remains if only on paper.  In relation to the immigration related prerogative powers, they have been severely curtailed ever since the enactment of Immigration Act 1971, however passport issuance and revocation still falls under prerogative power available with the executive. As a result, Parliament has no role in restraining any individual who might be forced to leave the UK and anyone who may be recalled back to the UK at a later time[11].  it is evident that such actions amount to interference with the autonomy with the individual but no justifications may be required in these cases. Considering the role of the immigrant community in various crimes, this power could also have significant implications for the national security particularly in an era or terrorism.

Besides, the Monarch has continued to retain the prerogative powers related to appointments which allows for making critical appointments which is not only limited to ministers but also includes other vital members such as  civil servants, judges and certain other appointments to public offices. Additionally, the power to grant various honours including political honours still is essentially the Monarch’s power[12]. However, as highlighted previously the Monarch has to act in these areas as per the Prime Minister’s advice and thus exercise of these powers remains outside the ambit of parliamentary scrutiny.  As a result, the PM has a freehand in making these crucial appointments which have tremendous implications for the security and functioning of the nation.  Clearly, with such unfettering power in appointment of these high officials, there is immense scope for abuse of power as has been highlighted in the cash for honours scandal that came to light in 2006-2007.  In the existence of adequate parliamentary scrutiny, it is plausible that such situation would not arise and the appointments may be made after greater deliberations and sound reasoning.

Based on the above instances, it seems evident that the with the wide prerogative powers, still existing which tend to supersede the parliamentary procedures  established, it may be fair to assume that there is a weakening of  democracy and also associated institutions. It may be unwise to provide such  wide sweeping power  with immense stakes for national security solely  at the discretion of select individuals which ruling out a majority  of elected representatives who do not  merit a say  in critical issues affecting the future of the people.

Weaknesses in Parliamentary Scrutiny

The judicial scrutiny of the prerogative powers usage seems to be more frequency in comparison with the parliamentary scrutiny.  The weak role played by the judiciary in this regard can be highlighted through the following discussion.

A leading case worth mentioning is the R v. Secretary of State for Home Affairs, ex p Northumbria Police Authority[13] in which it the Court of Appeal ruled that the ancient prerogative of maintaining peace when the state is not in any emergency.  The judicial scrutiny in the above case remained weak as the court might be reluctant in involving itself in police powers due to the controversial nature of the subject.  


Further, referring to the AG v. De Keyser's Royal Hotel[14] case which took place in the early part of the 20th century, the honourable judge Lord Dunedin opined that the ground of action on which the prerogative powers are applied is essentially provided by the statute and thus it tends to rule over the prerogative powers. It can be affirmed from the above argument made in the case above that increasing scrutiny with statute or judicial activism could potentially restrain the government powers and bring the various arms of the government in a more balanced position[15].

There has been reluctance on the part of the judiciary in the recent times with regards to carrying out a detailed scrutiny in the Crown’s prerogative powers and also the House of Lords has been exceptionally favourable to the government of the day. A controversial case in this regard was the R (Bancoult) v. Secretary of State for Foreign Affairs[16] case. This case involved the issuance of a Orders-in-Council in 2004 which was deployed in order to overturn the decision of regarding indigenous people exile as unlawful. However, this was subsequently found unlawful by both the High Court and also the Court of Appeal. However,  subsequently, an appeal was  made to the House of Lords and the verdict was  in favour of the government as the Lords endorsed the action taken by the Minister which formed the available prerogative powers. The above case indicative of the presence of judicial scrutiny power with the judiciary but the same needs greater support from the higher echelons particularly House of Lords so as to make any significant contribution in the wake of national security which may be severely jeopardised[17].

A landmark case pertaining to the prerogative power mode of exercise is Council for Civil Service Unions v. Minister for the Civil Service[18] and merits discussion.  In this particular case, the House of Lords reached the decision that prerogative powers exercise does not lead to the minister not being subject to judicial review and also did not involve making any exception to carry on the work with fairness and integrity. Thus, this case in indicative of the impact that judicial scrutiny can make and thereby act as a requisite check on the abuse of the usage of prerogative powers. Thus, this allows for fair use of prerogative powers by the executive. The decision taken in this particular case affirms the views expressed by Lord Denning in the Laker Airways Ltd v. Department of Trade[19] case.  He had advocated that if the usage of prerogative power has been carried out in an improper manner resulting in impinging of the legitimate individual or sectional rights, then the courts need to intervene in such cases[20]. 

Powers of the Executive in Matters of War and Treaty

From the above instances, it is apparent that the judicial  scrutiny tends to be stronger than the parliamentary scrutiny but still there is a strong case of making it more stringent and prevalent.  There is a conservative bias on the part of higher courts that are not keen to challenge the orthodox views and conventions even the times have changed and nature of threats have become different. As a result, there is high concentration of power amongst the executive without adequate consultations and deliberations. The passage of Human Rights Act 1998 has made some headways with enhancing the judicial scrutiny and invalidating those orders-in-council that are discriminatory in nature or interfere with individual rights. However, for the prerogative powers which do not fall within the ambit of human rights are still experiencing limited scrutiny and thus could continue to enjoy unchecked powers with serious implications for the national security.

Based on the above analysis, the worrisome observation of limited scrutiny over prerogative powers of the executive is apparent. As a result, there is an urgent need of reforms aimed at strengthen the scrutiny offered by both parliament as well as judiciary. An optimum solution is to scrap all the prerogative powers and instead enact respective statutes to deal with these subjects. But it seems that this is not going to happen anytime soon. Thus, alternative pragmatic suggestions are being offered for consideration[21].

The first measure to be taken is to ensure that the actions taken by the PM and other ministers while acting on their prerogative powers must be subject to parliamentary oversight through the mechanism of dedicated committees. In case of any discrepancy, the issue may be raised in the parliament with the committee report being tabled. Also, it is essential to increase the scrutiny power of the judiciary by ensuring that the judges display more judicial activism and are driven by public interest rather than conventions and orthodox practices. The judges need to take bold decisions which are meant to take the nation forward and also address various issues jeopardising national security[22]. This is critical as parliamentary oversight is expected to remain weak even in the future as the government of the day tends to enjoy a majority in the lower house and thus it is unlikely that the MPs would challenge the party leadership.

Conclusion

I have come to the conclusion that prerogative powers do remain an important part of the United Kingdom's constitution due to their continued use, and because of the amount of power which can be exerted by exercising prerogative powers. Parliamentary and judicial scrutiny of prerogative powers is weak, but in a modern democracy prerogative powers should be subject to greater Parliamentary scrutiny so that the will of the people can be followed in their exercise; and they should be subject to greater judicial scrutiny by a neutral and impartial judiciary who can make sure they are being exercised fairly

Reference

Andrew, S. and S. Maurice and M. Jo Eric Khushal, Public Law: Text. Cases, and Materials, London, Oxford University Press, 2016 p. 371.

Barnett, H., Constitutional & Administrative Law, Routledge, Routledge, 2014, p. 101.

Bogdanor, V., The Monarchy and the Constitution, London, Oxford University Press, 2003, p. 89.

Bradley and Ewing, Constitutional and Administrative Law,  London, Pearson Education Ltd, 2007.

Corby, S. and G. White Employee Relations in the Public Services: Themes and Issues, Routledge, Routledge, 2007, p. 56.

Dicey, A. V., Introduction the study of the Law of the Constitution, London, Oxford University Press, 2008.

Great, B.: Ministry of Justice, The governance of Britain: war powers and treaties: limiting executive powers, London, The Stationery Office, 2007, p. 20.

Lewans, M., Administrative Law and Judicial Deference, Bloomsbury, London, Bloomsbury Publishing, 2016, p. 11.

Loveland, L., Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction, London, Oxford University Press, 2015, p. 115.

Oakland, J.,   British Civilization: An Introduction, Routledge, Routledge, 2010, p. 22.

Case Law

Attorney-General v De Keyser's Royal Hotel Limited, 508, AC, 1920

Council of Civil Service Unions v. Minister for the Civil Service, UKHL 6 c, 1983

R (Bancoult) v. Secretary of State for Home Affairs, ex p Northumbria Police Authority, 1 QB 26, 1989

Laker Airways Ltd v. Department of Trade, Q.B. 643, 1977Acts Bill of Rights 1689Island of Rockall Act 1972 Immigration Act 1971 Human Rights Act 1998

J. Oakland, British Civilization: An Introduction, Routledge, Routledge, 2010, p. 22.

Attorney-General v De Keyser's Royal Hotel Limited, AC 508; 1920

V. Bogdanor, The Monarchy and the Constitution, London, Oxford University Press, 2003, p. 89.

S. Andrew, S. Maurice and M. Jo Eric Khushal, Public Law: Text. Cases, and Materials, London, Oxford University Press, 2016, p. 371.Ibid.3

A. V. Dicey, Introduction the study of the Law of the Constitution, London, Oxford University Press, 2008, p. 28.

radley and Ewing, Constitutional and Administrative Law, London, Pearson Education Ltd, 2007, p. 58.

L. Loveland, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction, London, Oxford University Press, 2015, p. 115.

M. Lewans, Administrative Law and Judicial Deference, Bloomsbury, London, Bloomsbury Publishing, 2016, p. 11.

Council of Civil Service Unions v. Minister for the Civil Service, UKHL 6 c; 1983

R  v. Secretary of State for Home Affairs, ex p Northumbria Police Authority, 1 QB 26 ;1989

Attorney-General v De Keyser's Royal Hotel Limited, AC 508; 1920

H. Barnett, Constitutional & Administrative Law, Routledge, Routledge, 2014, p. 101.

R  (Bancoult) v. Secretary of State for Home Affairs, ex p Northumbria Police Authority, 1 QB 26 ;1989Ibid. 8

Council of Civil Service Unions v. Minister for the Civil Service, UKHL 6 c; 1983

Laker Airways Ltd v. Department of Trade, 643, Q. B; 1977.

S. Corby and G, White, Employee Relations in the Public Services: Themes and Issues, Routledge, Routledge, 2007, p. 56.Ibid. 6B. Great: Ministry of Justice, The governance of Britain: war powers and treaties: limiting executive powers, London, The Stationery Office, 2007, p. 20.

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