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.
The Select Committee system, in theory, offers substantial scope for the Legislature to assert its autonomy from Government. In practice however it appears Select Committees have only a muted impact on Government’s effective domination of the house. In spite of the presumption that the Legislature has complete control over its internal structure the committee system was only introduced at the Government’s behest. The powers, terms of reference, and composition of each committee are matters controlled by the Government.
Parliamentary scrutiny is imperfect in part because exercise of some prerogative powers can be shielded from parliamentary question. An inherent tension exists between the legitimate right of a government to govern and the equally legitimate right of Parliament to ensure the collective accountability of government and the individual responsibility of ministers.
Parliamentary sovereignty is ensured by the fact that the Legislature has ultimate control of the prerogative in the sense that legislative statute, once enacted, causes prerogative power to fall into abeyance (Attorney General v de Keyser’s Royal Hotel Ltd [1920] AC 508). The Executive cannot defeat a statutory right by use of prerogative power (Laker Airways v Department of Trade [1977] QB 643, [1977] 2 All ER 182 CA). The Executive can only use prerogative powers remaining from 1689 which have not been abolished or curtailed by Parliament (BBC v Johns [1965] Ch 32 at 79, [1964] 1 All ER 923 at 941, CA).
The Executive is subject to the rule of law. “The king has no power save that allowed by law” - Case of Proclamations (1611) 12 C0 Rep 74. The mechanism by which the courts ensure Executive use of prerogative power stays within the limits of authority that Parliament has granted is judicial review.
In recent years judicial control of the prerogative appears less limited than it used to be. In R v Criminal Injuries Board ex part Lain [1967] 2 QB 864, 1967 2 All ER 770, DC (“Lain”) full judicial review was extended to include government tribunals acting pursuant to prerogative powers.
Lain was extended in the seminal case Council of Civil Service Unions v Minister Of State for the Civil Service [1985] AC 374 (“GCHQ”); the House of Lords found that the determinant of intensity of judicial review of a particular government power should not be whether the source of the power is prerogative or statute, but its purpose, what the power is intended to do. A key criterion developed in the GCHQ case was the concept of justiciability. If a governmental behaviour is to be subject to control in the courts it is justiciable. Non-justiciable exercise of prerogative power is only subject to limited review, on procedural rather than substantive grounds.
Matters such as appointment of ministers, dissolution of Parliament, grant of honours, treaties, and matters of state security are regarded as non-justiciable. These matters of high policy are instead to be determined by the Executive and remain under parliamentary control through the political process. This leaves important elements of the prerogative currently immune from judicial control.
Since GCHQ the trend in case law appears to grant more and more aspects of the prerogative justiciable status; the courts have applied their extended powers of review since 1985 in a way that has increased judicial control of prerogative action.
Prior to GCHQ the exercise of prerogative in relation to the regulation of civil service conditions was regarded as lying outside the scope of judicial review. In the post GCHQ case R v Civil Service Appeal Board, ex p Cunningham [1991] 4 All ER 310, CA and also in R v Army Board of Defence Council ex parte Anderson (1992) the courts were willing to become involved in this previously no go area. Similarly in R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett [1989] QB 811, [1989] 1 All ER 655, CA it was ruled for the first time that the formerly off limits foreign affairs matter of the granting and renewal of passports could be subject to review by the courts. In R v Secretary of State for the Home Department, ex p Bentley [1994] QB 349, [1993] 4 All ER 442, DC the prerogative of mercy, until that time regarded as non-justiciable, was found a fit subject for review.
The Human Rights Act 1998 has rendered justiciable many issues that formerly were not. The Human Rights Act with its stricture that it is “unlawful for a public authority to act in a way which is incompatible with a convention right”, appears to have statutorily added the various provisions of the European Convention on Human Rights as a subdivision to the judicial review common law grounds of illegality. In consequence the Human Rights Act, by subjecting the exercise of government powers to a version of the Rule of Law which is a good deal more rigorous than before, has given the Judiciary greater control over Executive application of prerogative.
Today the exercise of judicial control of the royal prerogative has the effect of defining the reach of executive power as well as laying down guidelines for the use of this power. Judicial control provides a procedural framework for decision making as well as limiting any abuse or excess of power.
Control over the exercise of the Royal Prerogative by the Legislature, inhibited as it is to a significant extent by the domination of the Commons by the Executive, leaves a great deal to be desired. The mechanism of judicial review allows the courts, within the limits of justiciability, to impose an apparently widening scrutiny of the use of government powers. The Human Rights Act (1998) has given the courts greater control over use of the Royal Prerogative. The deficiencies in control of the Royal Prerogative by the Legislature and the Judiciary are, in part, congruent not only with the concept of Separation of Powers, but also of the fact that the Government necessarily possesses prerogative powers in order to effectively govern.
Bibliography
Anson, WR (1935) The Law and Custom of the Constitution, Clarendon Press, 4th Ed.
Barnett, H (2000) Constitutional and Administrative Law, Cavendish, London 3rd Ed.
de Smith, SA (1975) Constitutional and Administrative Law, 2nd Ed.
Munro, C (1999) Studies in Constitutional Law, Butterworths, London, 2nd Ed.
Dicey, AV The Law of the Constitution (1898).
Barnett, H Constitutional and Administrative Law (2002) 456.
Grant of honours, disposition of armed forces, government contracts, judicial appointments, and matters affecting national security to name but a few.
