In case of foreign affairs: declaration of war and peace, making treaties, recognition of foreign states, the accreditation and reception of diplomats, annexation and cessation of territories, deployment of the armed forces on operations abroad.
In 1611 Case of Proclamation established the basic principle about determining the prerogative. It was stated that ‘the king hath no prerogative but what the law of the land allows’, letting the court to decide whether a prerogative power exists and if it does, to control its use. In 1965 Lord Diplock stated ‘it is 350 years and a civil war too late for the Queens’s courts to broaden the prerogative’, meaning that no new prerogative power can be created. Those principles established the judiciary as a final arbiter of common law powers of the government.
In 1984, during the famous GSHQ case, it was decided that the courts will not review prerogative powers relating to foreign affairs, dissolvement of Parliament, the Prerogative of Mercy, the granting of honours and appointing of Ministers, military strategy or national security.
In 1999 the judiciary expressed their reluctance to interfere with any issue relating to foreign affairs in R v Foreign Secretary, ex parte Butt [1999] Ca –unreported.
That approach had changed in R v Prime Minister [2002] All ER (D) 245), Secretary of the State for Foreign Affairs ex parte Everett [1989] 1 All ER 655), R v Secretary of the State for the Home Department, ex parte Bantley [1993] 4 All ER 442.
Parliament can also control the prerogative by overriding it or displacing with a statute. (example: The Bill of Rights 1689).
If they both deal with the same subject, the prerogative goes into abeyance (Attorney General v De Keyser’s Royal Hotel [1920] AC 508) - De Keyser’s principle. However, later it was suggested that if prerogative in question benefits citizens, it does not go into abeyance, unless the statue clearly says so (R v Home Secretary, ex parte Northumbria Police Authority [1987] 2 WLR 998.)
Royal prerogative can not be used to avoid what the Parliament legislated (Laker Airways v Department of Trade [1977] QB 643 and R v Home Secretary, ex parte Brigades Unions [1995] 2 All ER 244).
If prerogative was used for state’s obligations under international law, no changes in domestic law can be made unless Parliament legislate.
Also, all ministers are accountable to the Parliament and by this scrutiny Parliament can easily control executives actions as well as refuse the funding for them.
There has always been a resistance from Government to abolish prerogative. It was justified by the need of quick actions.
Former Labour in 1990s argued, that all governmental powers are in effect exercised on the advice of the Prime Minister and cabinet should be subject to parliamentary scrutiny.
In 2007 Gordon Brown proposed a reform ‘Green Paper’ The Governance of Britain, Cm 7170. Government argued that such actions would overwhelm parliamentary time and slow the enactment of legislation.
Royal prerogative affect a doctrine of separation of powers, as too much power is being given to a Prime Minister. Even if the Monarch personally exercised royal prerogative, she would have to consult it with the Prime Minister, mostly whose advice the Queen is obliged to accept.
Royal prerogative causes a lot of controversy. Recently, the Government has used it to deny passports to citizen who has joint citizenship with the UK and Zambia whom the US government released from the .
In 2004 the Royal Prerogative was used to exclude inhabitants from the .
Following the Chilcot Inquiry, it was reported that in July 2002 Blair ignored the advice, that a declaration of war on Iraq, as to depose Saddam Hussein, would be illegal, and instructed others to remove the advisor from Cabinet. Blair did not require parliamentary consent or approval to declare war against Iraq as the vote in the Parliament was constitutionally a vote of confidence for the use of the Royal Prerogative not for its use itself.
Currently decisions made under the prerogative have no formal accountability. Hopefully recent reforms will abolish them and replace with written statutes giving the Parliament full control of them, leading to less abuse and inappropriate usage.
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Bibliography
H. Barnett, Constitutional and Administrative Law, 6th Ed (Oxon: Routledge – Cavendish, 2006)
A. Caroll, Constitutional and Administrative Law, 3rd Ed (Harlow: Pearson Education Limited, 2003)
A.V. Dicey, Introduction to the study of the law of the Constitution, 10th Ed (London: Macmillan, 1959)
N. Parpworth, Constitutional and Administrative Law, 3rd Ed (Oxford: Oxford University Press, 2005)
( 7th December 2009)
( 7th December 2009)
A. Caroll, Constitutional and Administrative Law, 3rd Ed (Harlow: Pearson Education Limited, 2003), 219
A. Caroll, Constitutional and Administrative Law, 3rd Ed (Harlow: Pearson Education Limited, 2003), 223
A.V. Dicey, Introduction to the study of the law of the Constitution, 10th Ed (London: Macmillan, 1959), 424
Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935
Case of Proclamations [1611] 12 Co Rep 74
Case of Proclamations [1611] 12 Co Rep 74
BBC v Johns [1965] Ch 32 CA