Consider the view that the royal prerogative is insufficiently controlled by either Parliament or the judiciary.

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Public Law

Laurence Tucker

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In historical times the royal prerogative was regarded as the sum total of the rights ascribed to the Monarch as feudal lord paramount over the entire realm. Diceydefines prerogative in a more contemporary sense as the “discretionary authority of the Executive”, explaining that this means everything which the Monarch or her servants can do without the authority of an Act of Parliament. Few prerogatives are exercised directly by the Monarch today. While some governmental powers are conferred or defined by statute the prerogative powers of the Executive exist in virtue of customary common law.

Dicey’s definition of Rule of Law states, in part, that there should be no arbitrary government power. Parliamentary procedure and judicial review are forms of control which when imposed, by the Legislature and the Courts respectively, upon the Executive enable compliance with this understanding of the Rule of Law.

Government is dependent upon the support of Parliament for its existence. Ministers of the Executive must account to Parliament and be responsible for their exercise of the royal prerogative. These obligations of accountability and responsibility are owed both to the Legislature and to the various parliamentary select committees.

The Separation of Powers doctrine requires the Legislature to assume the responsibility to influence, constrain, and demand justification for the actions of government and give them legitimacy. The Legislature effects control upon Executive use of the prerogative both by the actions of members as individuals and by the actions of the Legislature as a body.

Question time, early day motions, written answers to MP’s questions and debate are all parliamentary procedures in which individual members of the Legislature act as “dispassionate arbiters of the national interest”.

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Unfortunately, in addition to the somewhat poor level of resources provided to individual members, the capacity of a member to engage in non-partisan evaluation of the exercise of government powers can be hobbled by party politics. The electoral system allows governments to command very large majorities in the House of Commons; this, to a significant extent, renders Governments immune to pressure from the Legislature as the party system allows majority leaders to use a carrot and stick approach to enforce discipline on individual MP’s in order to ensure that they hew to the party line in support of government.

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What about reform? Tony Benn MP campaigned extensively in the 1990s on the issue. Also see 'The Governance of Britain: Review of the Executive Royal Prerogative Powers: Final Report'. 4 Stars.