Prerogative Powers

Public Law- Class 7 /

Crown, Prerogative, Government:

The Crown

The central, organizing principle of government in the United Kingdom is the Crown. It ‘personifies the executive government of the country’: the Crown is associated with executive authority rather than with that of the common interest. Major public powers are seen to rest with the Crown, but are generally vested in ministers, servants of the Crown.

Lord Diplock in Town Investments Ltd v Department of the Environment [1978], “to speak of ‘the Crown’ as doing legislative or executive acts of government, which, in reality…are decided on and done by human beings rather than the Queen herself, invokes risk of confusion.” therefore we should instead of speaking of ‘the Crown’ speak of ‘the government’. This establishes two points; firstly that the concept of the Crown distorts reality in representing the different elements of the executive as a unified whole and secondly, Lord Diplock holds the view that executive acts done by ministers are essentially to be considered as acts done by the Crown.

However, here Lord Diplock’s analysis can be criticized as ministers have often been invested by statute with powers or duties to which they become legally answerable in cases of excess or improper use of such powers and in such cases the immunities of the Crown cannot shelter them. This is illustrated in the case M v Home Office [1994], where Lord Woolf confirmed, “There appears to be no reason in principle why, if statute places a duty on a specified minister…an action cannot be brought for breach of statutory duty claiming damages…against that specified minister personally.”

Immunities and privileges of the Crown

Having assumed attributes of the Crown, modern government is invested with most of those previously ‘royal’ prerogative powers including common law power, privileges and immunities. If some of these required powers did not belong to the government as part of the prerogative, they would have to be provided by statute. This concept of prerogative power is deftly justified by Locke’s explanation that the executive acts on behalf of the common good. Thus executive prerogative upholds the most fundamental tenet of the state- its preservation of the state.

Nonetheless, the prerogative also includes certain ...

This is a preview of the whole essay

Immunities and privileges of the Crown

Nonetheless, the prerogative also includes certain privileges and immunities which, as the legacy of a former royal pre-eminence, may lack justification in a modern democratic state.

For example, the “Crown may be able to avoid liability under a statute which is not expressed as being applicable to it,” this is described as ‘Crown immunity’, suggesting the Crown is not bound by statute. This idea is reinforced by section 40(2) (f) of the Crown Proceedings Act 1947, which provides that nothing in the Act shall ‘affect any rules of evidence or any presumption relating to the extent to which the Crown is bound by any Act of Parliament.’

Dicey defines the prerogative as “the name for the remaining portion of the Crown’s original authority…Every act which the executive government can lawfully do without the authority of the Act of Parliament is done in virtue of this prerogative”. In general courts have followed Dicey, making it debatable whether the government is rightly said to exercise the prerogative of the Crown when, e.g. it engages an employee or purchases goods, these being acts that any other person may perform.

There are possible political limits to prerogative powers, such as the fact no new powers can be created. Additionally, if statutory powers already exist which cover the same ground as prerogative power, the government is in general not free to choose between them, but must act under the statute. In the case of Attorney General V De Keyser’s Royal Hotel Ltd [1920], the prerogative was required to give way to statute.

Monarchy

The sovereign is the head of the state and symbolically represents the nation, although he or she is not the head of the government, i.e. the Queen.

Vernon Bogdanor claims within a constitutional monarchy we find ‘a set of conventions which limit the discretion of the sovereign so that his or her public acts are in reality those of ministers’. Bogdanor further explains that the head of state has a political history making it a more difficult role to ‘fulfill the symbolic and representative role successfully’. Unlike a monarchy, who has no political history thus in a ‘better position to represent the nation as a whole and to be a representative whom everyone can accept.’

Within a modern constitution the Queen still possesses certain rights; Vernon Bogdanor defines these into three: the right to be consulted, right to encourage and the right to warn.

Yet, there is little doubt that the royal influence on government has declined substantially so much so that even when it is the Queen who acts, she is normally obliged by convention to do so in accordance with the advice of her ministers.

Ministers

There is no legal requirement for a Prime Minister and the choice to appoint one legally lies with the Queen. Despite this, in reality the Queen’s choice of Prime Minister is governed by convention, which normally indicates the party leader who, having majority support in the House of Commons has an indisputable claim to be appointed as Prime Minister.

The Queen also has a prerogative power to dismiss ‘her’ ministers, but, again, this legal power is overlaid by convention. ‘In practice the fate of individual ministers is in the hands of the Prime Minister.’

Since no Prime Minister has been dismissed by Sovereign since 1783, it must now be unconstitutional for the Sovereign to dismiss the Prime Minister and his or her colleagues in all but the most exceptional circumstances.

The prerogative power of dissolving Parliament belongs to the Sovereign, but its exercise depends in ordinary circumstances on judgment of the Prime Minister. Lord Blake argues that the justification for the present practice is weak, but it seems nevertheless now to be established as a constitutional convention that the responsibility lies with the Prime Minister alone.

The Ministerial Code sets out guidelines for ministers to follow in order to form standards of conduct. The code is a prime-ministerial document in the sense that successive Prime Ministers amend it to their own authority, after consultation with ministerial colleagues and senior officers. It sets out prime-ministerial instructions, principles of good government and conventions of a binding character.

Prerogative in the Courts:

There have been several cases of prerogative powers exercised in the courts, this is seen in; R v Foreign Secretary, ex p Everett (1989). In this case the power to issue passport was found to be reviewable.

Another important case which exercises the right of prerogative; R v Home Secretary, ex p Bentley (1994), it was held that the prerogative of mercy was reviewable.

R v Home Secretary, ex p Northumbria Police Authority (1989), shows us that despite lack of legal authority, CA: HS could lawfully use prerogative powers to justify arming the police.

The Possible limitations of Prerogative Powers:

In terms of political limitations, it is evident that no new prerogative powers can be created. Furthermore, parliament can override and displace a Prerogative power by statute. In situations where the Crown is now empowered to do something by statute, it can longer act under the prerogative.

As conclusion, prerogative powers can be defined in Dicey’s words, as the ‘residue of discretionary or arbitrary authority which at any give time is legally left in the hands of the Crown’