Discuss whether ministerial accountability is adequately addressed in the UK Constitution.

The fact that these prerogatives are not written down in a codified manner leads to a sense of anonymity as to where these powers lie and the extent to which they can be exercised unlike the USA which has codified and entrenched constitution. The most recent and clear example of the use of prerogatives is the deployment of British troops to Iraq. The case of CND v Prime Minister [2003] which followed concerns the use of these powers. This case was brought after the Prime Minister give an order to bomb Iraq without prior consent from Parliament. The court held that the UN resolution 1441 prohibited the bombing of Iraq and that the government had acted ultra vires. This case shows that the courts tend to hold the government accountable as laws created by parliament have to be exercised by the courts. This is one advantage of the British constitution; its constant checks and balances as laid out by Montesquieu in The Spirits of Law. Having said this, Ministers are not required to record the use of prerogatives or even inform Parliament therefore these powers could be abused. On the other hand, it may not be feasible for a discussion in Parliament as it tends to take a long time due to constant “log-barrelling” and “filibustering”. It could therefore be said that it may be justified if the government acted in such a way. And considering that some of the prerogatives are found within the common law, the court can scrutinise them in the way they are applied. A case which illustrates the use of prerogatives excessively is Council for Civil Service Union v Minister for the Civil Service [1984] in which the then Prime Minister and her Civil Service made a statement denying the right to join trade unions for the employees of the GCHQ.    

The case of DDP v Chandler [1964] looks further into the use of prerogatives. In this case Lord Reid held that ministerial accountability and the prerogatives used should not be challenged by anyone nor the courts. Due to the fact that these powers cannot be extended only limited is a direct consequence of most powers used by ministers are found in statutes therefore are held to account by the courts. However there are some organisations such as Charter 88 that are constantly proposing constitutional review and amendment.

Having taken into account this evidence it can be said that the proposals outlined by Gladstone are valid and would offer the UK people  a more rational and democratic basis for power thus keeping the government more accountable for their actions. The use of these powers can always be limited by parliament in more ways than one, through a vote of no confidence or through parliamentary power. However Locke’s perception of a constitution still seems to be true and these prerogatives give the UK constitution a sense of flexibility and pragmatism which in some cases has shown to be very successful. Instead of getting rid of these powers it seems more beneficial if these powers were codified in some sort of legislation which can be thoroughly scrutinised by the courts and hence protect the British people from what the constitution is ideally there for.  

Bibliography

• “What Shall We Do with the Crown Prerogatives?” Gladstone (1993) 4(3) Journal of Legislative Studies
• Constitutional and Administrative Law, Barnett, Fifth edition, 2004