ROYAL PREROGATIVE

Outlining prerogative powers becomes much easier with recent Parliamentary Publications mentioned below. However, the more important task of controlling the use of such power is both a political and legal undertaking. In the following part of this essay, Political and Judicial control of Prerogative powers are focused upon.  

Since the Bill of Rights 1688 and Crown Proceedings Act 1947, Parliament can expressly remove a prerogative powers and may wish to enact a substitute statute. However, in the context of Parliamentary Democracy where accountability of government and scrutiny of politicians’ every actions are held to be absolutely important; the exercise, application, scope and limitations of Prerogative powers has in the recent years attracted a lot of attention. Referring to the uncodified UK constitution, perhaps not entirely out of nature, a list of Prerogative powers used by the government was published only in 2003 for the first time by the CPAC, obtaining information from the Department of Constitutional Affairs. And it was in 2003, leading up to the British invasion of Iraq, the then Labour Government led by Tony Blair placed unprecedented political strain on the prerogative power ‘to declare war on a foreign state’. It was established believe that Parliament would only have an ‘advisory’ role in the exercise of such an important prerogative belonging to the Crown. However, ex Prime Minister Tony Blair sought parliamentary approval for the British participation in the war against Iraq. Blair indicated that in the absence of an approval from the parliament he would not lead the Commons to formally advise the Queen to exercise her prerogative power in reaching a decision to declare war. Following this, it was firmly confirmed that Ministers acting under prerogative powers would be politically accountable to the Parliament. Within the Parliamentary political sphere it stirred up actions and counter actions with some pursuant to place statutory and legal limitations of Royal Prerogative. Amongst others, Clare Short proposed a Private Members Bill to remove the declaration of war from the list of Royal prerogative powers and proposed to solely empower the parliament for such a task.

But it is the Judiciary that intervened on more number of occasions in the Legal sphere, to place limitations on the exercise of prerogative powers. In the historically significant Case of Proclamation, Courts strongly argued that they possessed the right to determine the limits of the Royal prerogative. In BBC v Jonesit was held that no new prerogative powers can be created. In GCHQ, an argument centering an Executive motion, that prerogative powers and instructions issued under delegated power emanating from the prerogative, were discretionary; hence non-justiciable and non-reviewable by the Courts; was dismissed establishing that such Executive motion and delegated power emanating from the prerogative is not necessarily immune to review or justification in the Court of law. Also, it was provided that such powers are subject to limitations by the Court of law. As far as limiting the application and scope of prerogative powers exercised by the Executive it must be noted that modification to these powers were nevertheless, permitted in ex parte Northumbria Police Authority  and may be applied in line with the Queens power to ‘keep the peace in her realm’ which on this occasion allowed the Home Office to adopt measures such as to equip the Police forces with Plastic batton rounds and CS gas.

The Courts can also impliedly render a prerogative suspended by relying or giving way to a more appropriate statute provision. In De Keyser’s the Crown’s discretionary power to award compensation to those affected by the emergency seizure of properties in course of the defence of the realm, was suspended by a more generous compensation scheme provided by a relevant statute. In limiting the Executive’s exercise of prerogative powers, the Courts have also held ministerial advice given to the Crown, up for review when that advice was based on an error of law in ex parte Bently.

Prerogative powers have best suited its application at times of grave emergency. These set of powers are designed to properly apply and respond to a vast possible number of situations may be previously unseen and unprecedented. With the above control measures in place it is for the betterment of transparent accountable democracy that scrutiny and controlling mechanisms are in place. And it is perhaps for the greater good that these historical, unique powers are delegated from the Crown and also retained by the Crown exclusively in appropriate arrangement of the modern British Constitution.

Word Count- 999      

BIBLIOGRAPHY

• Course Booklet One – Constitutional and Administrative Law – the UNIVERSITY of GREENWICH

• The Royal Prerogative - Standard Note: SN/PC/03861; Last updated: 3 November; 2008 Author: Lucinda Maer and Oonagh Gay; Section: Parliament and Constitution Centre

• Public Administration Select Committee Report, Taming the Prerogative, 2004 http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/42202.htm

• Public Administration Select Committee, Constitutional Renewal: Draft Bill and White Paper, HC 499 2007-08

• Barnett, H, Constitutional and Administrative Law. 6th Edition (2006) Oxon: Routledge-Cavendish

• Fenwick, H; Phillipson, G, Q & A Constitutional and administrative Law. 6th Edition (2009) Oxon: Routledge- Cavendish.

• Clements, R; Kay, J, Q & A Public Law. 4th Edition (2007 and 2008) Oxford.

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