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"The Royal Prerogative remains a significant source of constitutional law which is largely immune from scrutiny by the courts."

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Introduction

"The Royal Prerogative remains a significant source of constitutional law which is largely immune from scrutiny by the courts." The question here is, do we agree with the view that the Royal Prerogative is immune from scrutiny by the courts, and whether it remains a significant source of constitutional law. In addressing this view, the first point to consider is the definitional controversy of the term, 'royal prerogative' and its origin, then consider its nature, modern position and its significance within the UK Constitution, and finally, whether or not the royal prerogative is immune from scrutiny by the courts. Under the UK Constitution, all actions of government are undertaken in the name of the Crown. Historically, the term, 'royal prerogative' has been applied to those special rights and privileges, which the King had as a feudal lord. There are two schools of thought on the definitional controversy of the term. Blackstone advanced the first 'narrow' or 'restrictive' interpretation. Blackstone defines the prerogative in his Commentaries1 as: .....that special pre-eminence which the King hath over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. ...read more.

Middle

of the Act had not replaced the prerogative power of the SoS to maintain law and order. In some statutes, the prerogative power is expressly preserved, for example, the Immigration Act 1971, s33 (5).12 The prerogative is divided into that which is exercised by ministers (in the name of the Crown), the 'political prerogative' and that which is personal to the monarch, 'personal prerogative'. While regal powers are exercised in the name of the Crown by the government of the day, the Crown nevertheless retains important residual power. Of these, the dissolution of Parliament and the appointment of Prime Minister are the most significant. 'There still remains the prerogative notion that the Crown never dies and can do no wrong'13, thus placing the Queen outside the jurisdiction of the courts and guaranteeing immunity from prosecution in her own courts. The political prerogative is usually sub-classified into Executive, Judicial and Legislative prerogatives. The Executive prerogative relates to international and national affairs, covering matters such as: disposition of the armed forces, conduct of the realm in time war and emergency, declaring war and peace, issuing passports, making treaties and the general conduct of external relations, including recognising foreign states and the consequential privileges and immunities flowing therefrom.14 The Judicial prerogative include that of mercy (power to issue pardon for offences) ...read more.

Conclusion

The prerogative seems not to be subject to a satisfactory degree of accountability, either through Parliament or the courts. There have been a number of proposals for the reform of the royal prerogative by academics such as Professor Munro and Professor Brazier. Former Labour MP, Tony Benn campaigned for the abolition of the Royal Prerogative in the 1990's, arguing that all governmental powers exercised on the advice of the Prime Minister and Cabinet should be subject to parliamentary scrutiny and require parliamentary approval. In conclusion, it is clear the view that the royal prerogative is immune from scrutiny by the courts, as the citation of the different types of prerogative powers and the reference to decided cases illustrate, is not quite accurate. However, saying that the royal prerogative is not immune from judicial scrutiny would be inaccurate, as the personal prerogative powers of the Queen is at least one element of the royal prerogative that supports the view above. It would be more accurate to say that royal prerogative powers within the UK are immune from judicial scrutiny to a certain extent, depending upon the nature of the power, not their source. WORD COUNT: 2,032. ...read more.

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