Prerogative Powers is Unnecessary - Essay Example

? Prerogative Powers are Unnecessary The Royal Prerogative can be described as an ity, privilege or immunity. This concept has been recognised by the common law. It is visible in the civil law jurisdictions, as the fact that the monarchy possesses all sovereign powers, which are shared by the executive for effecting governance. For instance, the decision to wage war against another country is an important decision, which the Parliament cannot debate.1 At times of national emergency, the Prime Minister or the executive invokes the Royal Prerogative to engage in warfare. However, the use of the Royal Prerogative is incompatible with modern day democracies. Thus, there is near consensus amongst the members of Parliament and the general public for discarding this concept. In the Iraq war issue, Prime Minister Tony Blair empowered Parliament to vote in support of the war. This was defective on two counts. First, Parliament should be empowered to declare war, without having to rely on any transfer of power by the Prime Minister. Second, there is no safeguard to prevent a future Prime Minister from waging war, without the consent of Parliament.2 The executive governmental powers constitute some of the prerogative powers. For example, the Crown is empowered, among other things, to conduct foreign relations. It is also empowered to conduct international affairs, declare war and sue for peace. The Crown can deploy the armed forces, appoint ministers and dissolve Parliament. However, the exercise of these powers necessitates the advice of the government. 3 Her Majesty has been provided with certain constitutional powers, which she can exercise as personal prerogative. These include the power of immunity from prosecution in the courts. Another such power is immunity from tax. Furthermore, the Queen enjoys proprietary interests in royal fish. Thus, the Royal Prerogative is an admixture of powers, rights, immunities, duties, and obligations.4 The empowerment of the Crown to conduct foreign relations and international affairs, to deploy the armed forces to a limited extent, to appoint ministers, dissolve Parliament and provide assent to bills, and to declare war or sue for peace, constitute its prerogative or executive powers. However, most of these powers can only be exercised by Her Majesty the Queen, after obtaining the advice of the government. There are a few powers that the Monarch can exercise independently; such as the dissolution of Parliament, creation of peers and providing assent to bills. In addition, the Queen can exercise some constitutional powers, as a part of her personal prerogative. These include immunity from prosecution, tax, and some proprietary interests. Thus, the royal prerogative is comprised of powers, immunities, rights and a miscellany of minor attributes like the prerogative of mercy. The Bill of Rights 1689 reduced the prerogatives of the Crown to a significant extent. The immunity for liability of the Crown in tort and contract was abolished by the Crown Proceedings Act 1947. In the Amphitrite case, the court ruled that the government of the UK was not bound by the assurance given to the ship owners. The courts had determined and controlled the scope and limitations of the executive powers of the government. Such powers had been distinguished from the executive powers derived from the Royal Prerogative.5 This decision brought home the fact that the prerogative powers were not absolute. The powers related to the Royal Prerogative, saw the light of the day, only in the year 2003. Most of these powers were left untouched, because their use would have resulted in a constitutional crisis. This was evident in an issue in which the monarch refused the Royal Assent to an Act of the Parliament. These powers include the right to declare war on a foreign country and impose a state of emergency, within the nation. In addition, it consists of the right to pardon offenders in serious crimes.6 Moreover, it comprises of the right to deny passports and to exercise Crown ownership in several areas. The Prime Minister exercises monarchical powers, and although in 2003, Tony Blair permitted Parliament to vote in favour of the Iraq war, it was not incumbent upon him to do so. This trend was preserved by the current Prime Minister, Gordon Brown who had promised to permit Parliament a vote on future wars.7 These concessions were made, as a token of the government’s intention to dilute prerogative powers and promote Parliament’s power. By utilising the Royal Prerogative, the Attlee Government rendered the UK a nuclear power. This stratagem was further employed, in order to allow the US to establish military bases in the UK, without the approval of Parliament. The Queen employs the Royal Prerogative to dissolve Parliament and to appoint a Prime Minister.8 As such, the approval of Parliament is unnecessary for employing the Royal Prerogative. There are different opinions about the Royal Prerogative, and there is considerable controversy about the scope of its powers. The Royal Prerogative, per se, is a constitutional archaism. However, its functioning is akin to the rest of the UK’s Constitution, which can be described as decrepit at best. In its application and from the legal perspective, the Royal Prerogative is representative of the British Constitution.9 For instance, in R v Hampden, Charles I of England attempted to impose a tax without the consent of Parliament. The court held that the raising of finance had to be done only through an Act of Parliament.10 This judgement discloses that the courts restrict prerogative powers and promote statutory power. In the Darnels Case, the court limited the King’s power to imprison. In addition, this decision affirmed the issue and existence of a habeas corpus writ.11 In Prohibitions del Roy, the court held that although all judicial power is exercised in the name of the monarch, the King should not hear disputes personally.12 Thus, any dispute has to be heard by the King’s court. These decisions limit the prerogative powers of the monarch to some extent. The courts exhibit a marked preference for the statute law. The case of CCSU v Minister for Civil Service established that prerogative powers were subject to judicial review. However, the exception was an issue entailing national security, and the House of Lords made it very clear that in such cases, the decision of the government would hold good.13 Moreover, in Burmah Oil v Lord Advocate the issue of compensation for loss resulting from the exercise of Royal Prerogative was considered. In 1942, the British forces destroyed the installations of Burmah Oil Company, in order to prevent the advancing Japanese forces from taking control. Burmah was then a colony of Britain. The Burmah Oil Company sought compensation for the damage to its oil fields.14 The House of Lords awarded compensation, because there was no rule that excluded compensation for loss caused during the exercise of prerogative power. With this decision, there was a marked decrease in the effect of prerogative powers in providing compensation for the acts of the armed forces. However, in R v Home Secretary ex parte Northumbria Police Authority, the Home Secretary provided some devices to the police, without the approval of the Chief Constable. The police authority objected to this provisioning and approached the court. The latter ruled that the provision of weaponry to the police was lawful under the prerogative power of the government and that it was also compatible with the Police Act 1964.15 In addition, the court opined that the provision of weaponry was well within the prerogative power of the government to ensure justice and maintain order. This exception to the general trend in court decisions was the recognition of the necessity to promote justice and preserve order in society. There has been a gradual but definite attrition of the Royal Prerogative in the United Kingdom. For instance, in 1858, Queen Victoria expressed her anguish at the prerogative powers of the Crown being diminished to the extent that she could not even appoint anyone to the Indian civil service.16 In the past, such appointments had been referable to the Monarch. In addition, the power to dissolve Parliament had been appropriated by the Prime Minister. The Monarch was limited to selecting a Prime Minister, in the event of no political party procuring a majority in the House of Commons.17 In the UK, the need for constitutional reforms has regained prominence. In Shrewsbury and Atcham Borough Council v Secretary of State for Communication and Local Government, the Court of Appeal examined the extent of the powers of the Crown that were beyond what had been derived from statute and Royal Prerogative.18 It analysed whether the procedure adopted by the Secretary of State to establish unitary authorities was beyond his powers. It was held that the procedure was well within the powers of the Secretary under the provisions of section 21 of the Local Government and Public Involvement in Health Act 2007. 19 In essence, the prerogative denotes the residue of the powers from the era when the sovereign participated directly in the governance of the nation. Some of these powers are those related to granting clemency and honours, regulating the civil service, deployment of the armed forces, declaring war and making treaties. At present, these powers constitute the preserve of the ministers of the government. On the few occasions that the monarch exercises these powers, it is at the behest of the ministers.20 The prerogative is an admixture of ordinary and special powers. These powers have been rendered ineffectual to a major extent, due to the gradual ascendancy of statute law. In conjunction with a rise in democratic thinking, the prerogative powers have acquired a dated nature. However, it is to be realised that the British constitutional development was chiefly effected by the prerogative. There were several crises in the seventeenth century, which had their origins in the exercise of the prerogative, and these in turn resulted in the modern constitutional settlement.21 As per the discussion and decided case law, it can be surmised that the Royal Prerogative is ineffective in the present day scenario where judicial activism adequately caters to the needs of society. Hence, it is incorrect to state that prerogative powers are necessary in a country like the UK, where fairness in governance, has always been of paramount importance. Traditional powers like the prerogatives permit abuse of the authority by the executive. This has been demonstrated in the above discussed cases. The courts on several occasions, have expressed their opposition to the exercise of prerogative powers. Their rulings have restricted prerogative powers to a major extent. Hence, only the statutory powers are acceptable and essential to modern societal needs. Moreover, abuse of power by the executive can be controlled to a significant extent by totally eliminating prerogative powers. Bibliography Burmah Oil v Lord Advocate (1965) AC 75. Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374. Darnel’s Case (the Five Knights’ Case) (1627). Grice, A, MPs should be awarded Queen’s historic powers, says Campbell, 2007, retrieved 18 April 2011, . McManus, R, ‘The Crown’s Common Law Powers’, Judicial Review, vol.15, no. 15, 2010, pp. 27 – 35. Nash, ML, ‘British Coalition Politics and Royal Prerogatives’, Contemporary Review, vol. 292, no. 1698, 2010, pp. 317 – 323. Poole, T, ‘United Kingdom: The royal prerogative’, International Journal of Constitutional Law, vol.8, no. 1, 2010, pp. 146 – 155. Poole, T, ‘Judicial review at the margins: law, power, and prerogative’, University of Toronto Law Journal, vol. 60, no. 1, 2010, pp. 81 – 108. Prohibitions del Roy (1607) 77 ER 1342. R v Hampden (Case of Ship Money) (1637) 3 State Trials 825. R v Secretary of State for the Home Department, ex parte Northumbria Police Authority (1989) 1 QB 26. Shrewsbury and Atcham Borough Council v Secretary of State for Communication and Local Government (2008) 3 All ER 548. Taylor, C & R Kelly, Parliamentary Approval for Deploying the Armed Forces: An Introduction to the Issues, Parliament and Constitution Centre, House of Commons Library, Research Paper 08/88, 2008. The Royal Prerogative, retrieved 22 April 2011, . The Bill of Rights 1689. The Crown Proceedings Act 1947. The European Communities Act 1972. The Police Act 1964. The Local Government and Public Involvement in Health Act 2007. Read More