Royal Prerogative

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“Prerogative powers represent one of the most fundamentally significant constitutional laws, not least because of these definitional difficulties. However, the most controversial aspect remains controlling the use”. Guissani E, Constitutional and Administrative Law, (1st edition 2008), p.226

One of the most important figures in law, Dicey has described Royal prerogative as: “historically and as a matter of fact nothing else than the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown”.

Royal prerogative is commonly exercised by the Monarch. It is used for appointing the Prime Minister. The Crown also has a role in exercising reminders. Prerogative is a part of the common law. No Act of Parliament or approval is needed for it to be used. The King could not himself act as a judge; he must dispense justice through his judges. And he could make laws only through Parliament. There have been some problems, regarding to arbitrary power, which was announced as illegal, according to the Petition of Right 1628. Back in 17th century the Bill of Rights 1689 has declared specific illegal abuses to the prerogative power. A later decision was then made that prerogative power could only be exercised through a minister, responsible to the Parliament. Those prerogative powers are not written down, due to the unwritten constitution of the country and are based in common law.

The prerogative has always remained an important source of Governmental power. Principles are: the conduction of foreign affairs (making treaties), the patronage power, commandment of armed forces, summoning and dissolving of Parliament, giving Royal Assent to legislation and the prerogative of mercy.

BBC v Johns and Dumbarton District Council v Lord Advocate have two contrasting views of prerogative. Due to lack of documentation in BBC v Johns, has leaded to being unable to find out to what extent the royal prerogative has been used “... too late for the Queen’s court to broaden the prerogative”, says Lord Diplock. Contrasting it to Lord Advocate v Dumbarton District Council , which was overruled by House of Lords. It was argued that the Crown must be must be bound by legislation, unless it is affecting any rights, privileges, immunities or interests.

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“In our scheme for Scotland and Wales legislative powers would be conferred on a legislature consisting of Your Majesty and the assembly. This would have the consequence that assembly Bill would need to secure the Royal Assent before being given the force of law.”

Decisions made on senior position now belong as a role to the Prime Minister or other senior Ministers. Their responsibilities include elevation to most senior positions in state and/or church and armed forces. Issues regarding that matter are usually criticised under the royal prerogative and not Act of Parliament. In the case Chandler v Director of ...

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