How far is the survival of the royal prerogative a standing affront to the principles of democratic constitutionalism?

Whilst prerogative powers are exercised by the Crown, it is well established that they cannot contradict the will of Parliament, whether it is expressly stated in statute or can be implied. This was first seen in de Keyser’s Royal Hotel Ltd  where Lord Atkinson ruled when the legislature “impose restrictions and limitations” on a power then the Crown cannot “disregard these provisions”. This ruling that the prerogative power should effectively be replaced in areas where statutes provide the necessary direction further shows how prerogative has been refined within the power of Parliament, although in some cases prerogative can work with statues. The Fire Brigades Union case further extended this principle when the Home secretary tried to replace a benefits scheme authorised (although not implemented) in the Criminal Justice Act 1988 with a completely different scheme using the prerogative power rather than repealing the act. Lord Lloyd ruled that the prerogative gives “no power to reject” any “statement of Parliamentary intention”, even if it has not been implemented. However, the scheme was enacted in legislation shortly after, which may lead to the suggestion that this Parliamentary influence of prerogative is not providing the constitutional control it should be.

Indeed, it could be argued that the concept of prerogative is in direct opposition to the concept of the separation of powers. If the government can use prerogative powers to bring in what is effectively legislation, then the initial reaction would be that they are encroaching onto Parliament’s remit as the Legislature. The key issue in this area relates to Orders of Council, which effective make legislation for overseas colonies. As can be seen in Bancoult (No 2)where the Government issued two Orders in Council preventing the Chagos islanders from returning to their island. There was no involvement of Parliament in this case and the legislation was in direct opposition the order of the courts. However, whilst prerogative can affect the separation of powers between Legislature and Executive, it must be noted that this effect is relatively small in comparison to the key issue of cabinet dominance over parliament. Whilst this constitutional dilemma remains, it is unlikely that the prerogative will be restricted further due to the convenience it provides to the Executive and therefore it is this issue, rather than the survival of the prerogative that causes the current breach in separation of powers.  

This leads to arguably the main reason that the prerogative has been brought into line with democratic constitutional principles – judicial review. Ironically, it is the body that is not democratically elected that provides the balance with constitutions, although this is perhaps not surprising as it is one of the key functions of the judiciary. It was thought for many years that the courts cannot review the decisions made under the prerogative, effectively giving the crown carte blanche to discard the rule of law if it chose (although political pressure may have provided some control). However, in a process arguably started by Lain  there has been an erosion of this view, to a situation that is now governed by the GCHQ case , in which Lord Diplock ruled that prerogative powers are not inherently “immune from judicial review” simply because it is a prerogative, although it may be for issues such as national security.  Lord Roskill went on to give a list of powers which are not justiciable (including treaties, granting of honours and the disposition of armed forces) due to their nature. This can be seen to add to the argument that the prerogative is now being used in alignment with constitutional principles, as it is serving to act as a reasoning for maintaining a separation of powers between the courts and Executive and maintaining Parliamentary sovereignty (although it could be argued that this separation of powers is a reason enough.)

The issue of judicial review has been returned to in Bancoult (no 2), where the government have effectively ignored the court order in Bancoult (no 1) to allow islanders who had been evicted under prerogative to return. They issued Orders of Council under prerogative powers, on the basis that they were unjusticiable. However, Waller LJ rejected this in the Court of Appeal, stating that under GCHQ, there is “nothing in their nature that makes them unjusticiable.” However, this case is on appeal to the House of Lords, and the judgement in it could have serious consequences for the issue of prerogative. If it is found that it is unjusticiable, then it could be inferred that the use of the prerogative is both against the rule of law and potentially against Human Rights. However, the House of Lords may find the issue unjusticiable on grounds of national security and suggest compensation should be paid to the sufferers.

A further way in which prerogative has been brought into line with constitutional principles is through the use of convention. This is best illustrated by the prerogative of dispatching armed forces. It can be seen in the Falklands conflict (and later in the operations in Yugoslavia and Afghanistan) that parliamentary authority was not required to commit to military action. The Prime Minister in 1982 even noted that “it is an inherent jurisdiction of the government to negotiate and reach decisions” in this area. This seems to be both against the concept of parliamentary sovereignty and on a more specific level, a decision that should not be made by such a small group of people as the executive. However, it seems that this prerogative has now been bound by a convention by the Government seeking approval from the House of Commons prior to the Iraq war, a view that is supported by the House of Lords Select Committee on the Constitution  who recommend a “parliamentary convention” and stat that prerogative “should not be allowed to continue as the basis for legitimate war-making in our 21st century democracy.”

Indeed, far from being a “standing affront” to democratic constitutional principles, it has been seen that prerogative can be used to enable these functions to act more efficiently. If the prerogative were to be replaced with statutory code, as suggested by Professor Rodney Brazier  then it is likely that democratic principles would suffer as powers became entrenched and inflexible. The use of prerogative can both push through minor decisions that may become stuck in Parliament and save the considerable expense of putting them before Parliament, without affecting fundamental constitutional principles. There are still some inconsistencies with prerogative and democracy, such as the potential issue of the Queen having to choose a Prime Minister in the event of a lack of majority. However, issues such as this are both unlikely to happen and more importantly, unlikely to affect constitutional fundamentals. Overall, whilst the prerogative may once have been at conflict with democracy, it has now become a tool of efficiency for governing in a wide range of situations. Rather than the prerogative being a constitutional issue, it is now the fundamental conflict between the fundamentals such as the rule of law, parliamentary sovereignty and the separation of powers that needs to be addressed.